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CURTIS  H.  LINDLEY,  Esq. 

President  Presiding. 


SPEAKERS: 


COURTBNAY  DE  KALB,  ESQ. 

HON.  F.  M.  ANGELLOTTI, 

Associate  Justice  Supreme  Court. 

HON.  U.  S.  WEBB, 

Attorney-General. 

SBTH  MANN,  ESQ, 


T 


The  Recorder  Printing  and  Publishing  Co. 


130  McAllister  Street,  S.  F. 


^     OFFICERS  AND  COMMITTEES 


01"  THID 

1910 


CO 

to 
en 


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OFFICERS 

President 
CURTIS  H.  LINDLEY 

Senior  Vice-President 
WARREN  OLNEY,  JR. 

Junior  Vice-President 
JESSE  W.  LILIENTHAL 

Treasurer 
JOHN  M.  BURNETT 

Becretarj/ 
GEO.   J.   MARTIN 

Trustees. 

W.  B.  BOSLEY  WINFIELD  DORN 

LESTER  H.  JACOBS  WALTER  P.  JOHNSON 

W.  B.  KOLLMYER 


293464 


STANDING  COMMITTEES 


Committee  on  Admissions: 

I,  I.  Brown,  Chairman. 


Albert  J.  Coogan 
Joseph  Hutchinson 
James  Lanaoan 


Thomas  S.  Molloy 
John  S.  Pabtbidge 
Andrew  Thobne 


Committee  on  Amendment  of  the  Law: 

A.  E.  Bolton,  Chairman. 


Allen  G.  Weight 
L.  H.  Jacobs 
J.  F.  Bowie 
M.  I.  Sullivan 


W.    H.    GOBBILL 

I.  Hakbis 

Waeren  Olney  Jb. 
Emil  Pohli 


Committee  on  Grievances: 

J.  C.  McKinstey,  Chairman. 


F.  P.  Deebing 
o.  k.  cushing 
Joseph  Hutchinson 
H,  U.  Bbandenstein 
Nathan  Moban 


Jesse  H.  Steinhabt 
T.  E.  Palmer 
Joseph  Habeb 
Edw.  W.  Rice 


^ 


Committee  on  Invitation  and  Reception: 

Edward  A.  Belcheb,  Chairman. 


W.  B.  Koixmyeb 
Henby  Bickhoff 


Chas.  E.  Naylob 
W.  H.  Payson 


SPECIAL  COMMITTEES 

Committee  on. Reform  of  Civil  and  Criminal  Procedure: 
O.    K.    Gushing,   Chairman. 

BEr\'ERLY   L.    HOBGHEAD  I.    HaBRIS 

Gbant  H.  Smith  Boutwell  Duxlap  - 

Committee  on  Reform  in  the  Jury  System: 

Allen  G.  Wright,  Chairman. 

Alex.  D.  Keyes  William  Denman 

J.  F.  Bowie  James  F.  Lanagan 

Committee  on  Ethnics: 

Charles  S.  Wheeler,  Chairman. 

A.  C.  Fbeeman  Chas.  A.  Shurtleff 

Warren  Olney,   Jr.  Gboveb  O'Connor 

Committee  on  Investigation  of  Delays  in  Court  Procedure: 
W.  P.  Johnson,  Chairman. 

W.    S.    GrOODFEIXOW  WaBBEN    GBEGOEY 

H.  U.  Bbandenstein  Charles   S.   Cushing 

Committee  to  Investigate  Advertisements  for  Divorce  Practice: 
Franklin  T.  Poobe,  Chairman. 
J.  S.  Lamson  Scott  Hendricks 

Committee    to   Investigate   Conduct   of   Attorneys    in   Police    Court 
Practice: 

Leo  J.  McEnerney,  Chairman. 
Edwabd  a.  Cunha  Wm.  C.   CRirreNOEN 

Committee  on  Lectures: 

WiNFiELD  DoRN,  Chairman, 
James  Lanagan  Philip  Bancroft 


Digitized  by  the  Internet  Arciiive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/afterdinnerproceOObaraiala 


After- imtter  prar^^imga 


The  President:  Ordinarily  the  President  of  this  Asso- 
ciation is  supposed  to  make  an  address  at  the  beginning  of 
the  literary  exercises  of  the  evening.  There  will  be  a  pleas- 
urable disappointment  in  that  respect  for  you  this  evening — 
there  will  be  no  set  address  by  the  President.  We  have  too 
much  of  interest  before  us. 

There  are  one  or  two  things,  however,  in  connection  with 
a  subject  in  which  we  are  all  interested,  that  I  think  it  worth 
while  to  say  to  you  at  this  time. 

In  an  address  that  I  indiscreetly  delivered  before  the 
Commonwealth  Club  of  the  city  of  San  Jose  the  other  evening 
I  referred  to  a  distinguished  professor  of  a  distinguished 
university  in  their  midst  as  having  given  an  epigrammatic 
solution  of  all  the  troubles  to  which  the  lack  of  administration 
of  the  law  are  due,  and  that  was  to  "hang  a  few  lawyers". 
The  statement  was  made  by  Professor  Bert  Estes  Howard 
in  a  lecture  delivered  before  a  woman's  club  in  San  Francisco. 
Mr.  Cahill,  who  edits  a  very  interesting  page  of  the  "Sunday 
Call",  unfortunately  ascribed  that  remark  to  Professor  Boke 
of  the  University  of  California. 

I  stated,  in  criticizing  this  epigrammatic  suggestion  of  a 
method  of  release  from  all  our  troubles  that  the  distinguished 
professor  was  talking  to  an  assemblage  of  ladies  who  might 
possibly  feel  that  he  was  either  inspired,  or  had  so  deep  an 
insight  into  the  sociological  situation  that  the  execution  of 
his  sentence  of  extinction  might  justifiably  take  place  im- 
mediately, and  made  some  other  irreverent  remarks  with 
reference  to  the  distinguished  philosophic  utterances  of  the 
learned  professor,  stating  that  the  members  of  my  profes- 
sion looked  upon  a  philosopher  as  one  who  could  bear  with 
resignation  the  troubles  of  other  people.  And  to  see  the 
name  of  my  good  friend,  Professor  Boke,  mentioned  in  the 
article  as  it  appeared  in  the  "San  Francisco  Call",  as  being 
responsible  for  the  epigram  was  a  surprise  to  both  Professor 
Boke  and  myself.  The  economists  from  the  outside  can  criti- 
cize the  law  and  not  be  amenable  to  any  severe  castigation 
at  the  hands  of  the  lawyer,  but  when  one  of  my  own  pro- 
fession is  charged  with  suggesting  so  fatal  a  remedy  as  *  *  hang- 
ing the  lawyer"  it  is  time  that  somebody  stood  up  in  defense 
of  the  profession.    I  think  the  remarks  of  Professor  Howard 

[7] 


were  prefaced  with  the  statement  ''that  if  we  had  a  few  more 
hung  lawyers  we  would  have  less  hung  juries ' ', 

That  suggests  to  my  mind  that  there  are  others  besides 
lawyers  in  the  body  politic  inquiring  into  the  functions  of  the 
lawyer.  The  attitude  of  the  lawyer,  both  as  an  individual 
and  in  his  collective  capacity,  is  being  studied  for  the  first 
time  by  the  economist  and  by  the  sociologist.  We  find  with- 
in our  own  particular  domain  no  patent  right  to  exclude 
everybody  else  from  discussing  the  attitude  of  the  lawyer 
toward  the  public.  Nor  have  we  the  right  to  say  that  we  alone 
are  to  determine  the  position  we  shall  occupy  as  a  civic 
factor.  Our  acts  are  being  criticized  from  without  and  we 
should  heed  the  warning  that  comes  even  from  a 'professor 
of  economics  in  a  learned  university  who  expects  to  retire 
some  day  into  the  shadow  of  the  Carnegie  Foundation.  As 
I  have  had  occasion  to  say  before,  there  is  no  Carnegie  Foun- 
dation under  which  the  superannuated  judge  or  lawyer  may 
rest. 

We  have  to  meet  these  problems,  gentlemen,  sanely,  in- 
telligently and  earnestly.  We  cannot  dismiss  the  criticisms 
that  are  being  passed  upon  our  profession  by  the  incumbents 
of  the  chairs  of  sociology  and  economics,  or  by  occupants  of 
the  chair  of  psychology  in  Harvard  University,  who  has  also 
a  remedy  for  all  our  troubles,  namely  the  introduction  of 
the  psychological  expert,  who  will  determine  whether  a  wit^ 
ness  is  telling  the  truth. 

So  we  see,  in  the  large  range  of  view  of  the  subject,  that 
we  must  get  out  of  the  narrow  compass  in  which  we  move 
and  look  at  the  psychological  problems  that  are  involved. 
Other  people  look  at  them  and  from  varied  viewpoints. 
Why  should  not  we  take  another  viewpoint  from  which  to 
scan  the  situation  ? 

I  do  not  know  but  what  some  of  my  indiscreet  utterances 
may  lay  me  open  to  the  charge  of  presenting  a  propoganda 
not  altogether  prof&ssional,  and  which  is  somewhat  psycholo- 
gical. I  want  to  assure  the  members  of  the  Association  who 
have  been  kind  enough  to  entrust  me  with  the  destinies  of 
the  Association  as  presiding  officer  during  this  term  that  I 
am  not  a  socialist,  although  I  think  we  will  all  have  to  alter 
our  definition  of  "socialist"  as  given  in  the  first  instance. 
But  I  have  had  occasion  to  say,  as  I  said  in  my  address  at 
San  Jose — and  think  I  have  said  it  before  this  Association — 
that  some  of  our  laws  are  framed  upon  an  individualistic 
theory  that  was  pertinent  in  the  seventeenth  century,  but 
which  is  not  pertinent  to  the  twentieth  century  by  reason  of 
the  social  evolution  which  has  taken  place ;  and  that  the  prop- 
osition of  looking  at  men  as  groups  instead  of  as  individuals 


is  forcing  itself  upon  the  attention  of  the  intellectual  world 
today.  ^ 

I  may  cite  as  an  illustration  of  the  evolution  of  things, 
the  fact  that  the  House  of  Lords  and  the  Commons  and  the 
whole  body  politic  of  England  has  been  in  a  turmoil  over 
a  principle  which  was  practically  reiterated — reiterated,  not 
born,  because  it  was  born  before  Henry  George,  a  journalist 
of  this  city,  wrote  "Progress  and  Poverty".  It  shows  the 
advance  of  civilization,  shows  the  manner  in  which  they  deal 
with  the  subject  in  Germany,  and  France,  and  Belgium,  and 
England,  upon  the  collective  theory,  whereas  we  deal  with  the 
problem  entirely  from  the  standpoint  of  individualism. 

I  am  not  for  a  moment  establishing  a  propaganda  that 
we  should  disregard  the  essential  necessity  of  individual 
initiative.  From  the  beginning  of  human  society,  every  in- 
dividual has  to  surrender  something  for  the  benefit  of  all 
mankind,  or  those  of  the  group  to  whom  he  immediately  be- 
longs. And  the  question  as  to  how  much  he  shall  surrender 
cannot  be  mathematically  stated  at  any  period  in  the  world's 
history.  It  has  to  be  determined  by  the  state'  of  things  as 
they  exist,  and  that  is  the  limit  to  which  I  go  in  my  advo- 
cation of  the  recognition  of  collective  spirit,  particularly  when 
it  comes  to  the  administration  of  criminal  law. 

Emphasizing  the  suggestion  that  there  are  other  groups 
of  men  learned,  earnest,  honest,  looking  into  this  profession 
as  a  civic  factor  in  the  development  of  civilization,  in  the  ad- 
vancement of  civilization,  in  the  advancement  of  all 
that  is  good,  in  the  seeking  of  higher  ideals,  I  have 
come  in  contact  with  a  number  of  men,  not  of  my  pro- 
fession, who  have  something  of  foresight,  something  of  judg- 
ment, to  which  we  ought  all  to  listen ;  some  who  have  studied 
it  from  both  outside  the  professional  line  of  development  and 
inside  that  line.  I  have  the  pleasure  of  announcing  to  you 
something  not  on  the  program  tonight  that  came  to  me  as 
a  matter  of  inspiration.  We  have  with  us  this  evening  a 
guest  with  whom  I  have  discussed  these  questions  "in  the 
closet,"  a  mining  engineer  of  large  experience,  the  editor  of 
the  "Mining  and  Scientific  Press,"  who  can  see  as  far  into 
the  future  as  any  of  us  are  permitted  to  see  from  a  rational 
viewpoint,  and  to  correlate  things  that  are  coming  along  in 
our  profession  as  they  affect  not  only  the  good  and  the  wel- 
fare of  the  general  public,  but  the  profession  particularly. 

I  wish  to  say  that  the  gentleman  I  am  going  to  introduce 
to  you  had  no  warning  that  he  was  to  be  called  upon,  until 
I  asked  him  this  evening  as  we  came  into  this  banquet  room 
if  he  would  give  us  his  idea  and  his  views  somewhat  on  the 
lines  I  have  discussed,  the  view  of  our  profession  from  the  out- 


10 

side,  and  he  has  kindly  consented  to  do  so  without  previous 
preparation.  I  have  the  privilege  of  introducing  to  you  Mr. 
Courtney  De  Kalb,  of  the  "Mining  and  Scientific  Press". 

Address  of  Mr.  Courtenay  De  Kalb 

Mr.  President  and  Gentlemen  of  the  Bar  Association:  I 
very  reluctantly  consented  to  say  a  few  words  here  to-night, 
and  I  promise  you  that  I  shall  make  them  very  few.  Indeed,  1 
must  apologize  for  even  attempting  to  address  an  audience,  for 
that  is  not  in  any  sense  my  vocation,  nor  even  my  avocation. 
In  asking  me  to  discuss  the  subject  of  collectivism,  Judge  Lind- 
ley  has  asked  one  who  is  quite  likely  to  take  an  opposite  view 
from  his  own,  for  the  Judge  has  been  brought  up  in  the  centers 
of  civilization,  while  I  am  essentially  a  frontiersman. 

I  think  that  the  experience  a  man  acquires  on  the  frontier 
necessarily  causes  him  to  pay  a  great  amount  of  respect  to  the 
rights  of  the  individual — much  more  so  than  in  the  case  of  one 
who  has  been  brought  up  in  the  centers  of  civilization.  He 
comes  to  appreciate  individual  initiative  and  individual 
prowess  on  the  frontier,  and  he  comes  to  think  less  of  it  where 
he  is  not  called  to  depend  so  much  upon  the  unit  as  upon  the 
mass.  There  is  such  a  thing  as  "mass  action"  socially,  just  as 
there  is  chemically;  there  are  changes  occurring  which  are 
proportional  to  the  products  of  the  masses  taking  part  in  it. 
This  is  part  of  the  cause  of  the  complexity  of  social  problems, 
and  of  the  difficulty  of  determining  the  course  of  social  evolu- 
tion as  a  logical  process.  There  are  surprises,  inexplicable 
phenomena — the  vagaries  due  to  "mass  action,"  which  here 
means  the  shifting  balance  of  preponderating  sentiment  at 
different  times.  Thus  we  can  not  predict ;  we  can  not  be  sure 
that  we  or  any  other  men,  or  body  of  men  who  take  the  task 
upon  themselves,  are  directing  the  forces  of  civilization  in  any 
particular  direction.  We  can  study  what  has  been  done;  we 
can  measure  the  size  and  strength  of  the  stones  that  have  been 
set  into  the  social  structure.  And  it  has  been  borne  in  upon 
me  that  the  courts  have  had  more  to  do  with  this  final  work  as 
social  artificers  than  any  other  single  agency.  It  seems  that 
we  cannot  regard  anything  in  our  civilization  as  essentially 
fixed  until  it  has  been  fixed  by  the  courts — until  it  has  been 
winnowed,  and  tried,  and  tested  by  the  judicial  safeguards  of 
our  civic  life.  There  is  eternal  shifting,  tidal  ebb  and  flow  in 
the  great  sea  of  social  existence  where  men  are  .struggling.  In 
this  c(?aseless  effort,  which  is  an  effort  always  for  the  future, 
and  therefore  progressive,  something  must  line  up  the  flood 
into  a  definite  current,  a  consciously  purposeful  stream ;  and 
the  force  that  does  it  is  the  force  we  admit  as  final,  before 


11 

which  we  all  bow  at  last,  namely,  the  decisions  of  the  Judges. 
We  do  not  know  which  way  we  are  going  until  the  courts  have 
decided  which  way  we  may  go. 

The  decisions  of  the  courts  have  determined  for  us,  I  think, 
in  later  years,  that  the  individual  is  less  to  be  regarded  than 
the  mass.  I  believe  that  spirit  is  growing  in  the  West  more 
than  it  is  in  the  East.  That  is  because  the  Wast  is  feeling  the 
influence  of  social  aggregation  after  that  period  of  intensely 
individualistic  effort  which  is  needful  for  pioneer  develop- 
ment ;  but  on  the  other  hand  it  represents  relaxation — it  means 
transference  of  power  from  the  atomic  unit  to  the  molecular 
unit.  I  am  not  saying  which  is  better;  I  am  pointing  out  a 
fact,  and  a  great  fact,  fraught  with  mighty  consequences.  In 
proportion  as  we  lose  the  influence  of  individual  initiative  we 
lose  something  that  has  made  heroes,  brave  men,  doers  of  won- 
ders that  will  remain  an  inspiration  to  all  times.  There  is  the 
reverse  side  of  this  picture,  to-wit,  the  individual  brute, 
trampling  on  the  rights  of  other  men.  Are  we  sure  that  col- 
lectivism will  not  possass  its  collective  brutality,  its  collective 
disregard  of  your  rights  and  my  rights,  and  those  of  your 
children  and  mine?  But  these  changes  are  inevitable;  the 
world  will  go  as  it  listeth,  as  the  wind  blows,  but  the  courts 
are  our  barrier-walls  and  wind-breaks  to  protect  our  homes,  to 
give  us  the  shelter  of  peace  and  security  in  the  divine  right  to 
wrest  out  of  the  turmoil  of  life  the  only  thing  worth  living 
for — happiness ! 

I  said  that  the  tendency  away  from  individualism  was 
growing  in  the  West.  I  may  illustrate  it  from  events  in  the 
mining  world,  for  I  must  perforce  look  at  this  world  through 
the  spectacles  of  an  engineer.  The  West  drew  its  initial 
strength  from  the  mines  and  the  balance  between  the  output  of 
the  mines  and  that  of  the  farms  is  something  that  it  is  worth 
while  to  maintain  for  a  long  time  to  come  if  industrial  con- 
ditions in  the  West  are  to  remain  universally  healthy.  There 
has  been  a  tendency  to  grant  that  mining  corporations  may 
take  precedence  over  individuals  in  right  and  privilege. 
I  think  that  we  have  to  admit  that  the  welfare  of  the  commu- 
nity is  necessarily  to  be  cared  for  by  the  courts,  rather  than  to 
have  our  rights  looked  after  by  the  individual.  In  a  recent 
decision,  which  I  believe  is  going  to  be  reviewed  again  in  this 
State,  it  being  rendered  originally  in  Montana,  the  doctrine 
of  the  greatest  good  to  the  greatest  number  was  set  forth  in 
the  clearest  possible  terms.  It  was  a  decision  by  Judge  Hunt 
in  the  famous  Anaconda  smoke  case.  There  was  the  quastion 
of  shutting  down  a  smelter,  which  involved  the  cessation  of 
mining  operations  and  the  throwing  out  of  employment  of 
something  like  twelve  thousand  men,  involving  indirectly  a 


12 

population  of  about  forty  thousand  people.  There  was  no 
doubt  in  the  world  that  the  surrounding  farms  were  being 
damaged.  At  first  the  injunction  was  granted,  and  then  the 
injunction  was  set  aside  on  the  ground  that  a  few  could  not 
take  away  food  from  so  many  mouths ;  and  that  was  done  in 
entire  disregard  of  ample  proof  that  damage  was  being  done 
and  that,  the  continuance  of  farming  was  prejudiced  through- 
out a  large  range  around  the  smelter. 

The  question  of  the  rights  of  individuals  in  Arizona  was 
dealt  with  in  a  different  way.  A  decision  recently  in  the 
Arizona  Supreme  Court,  in  connection  with  the  Arizona  Cop-  - 
per  Company,  recognized  the  right  of  the  farmers;  yet  that 
decision  has  been  set  aside,  pending  appeal  to  the  Supreme 
Court  of  the  United  States,  so  that  an  effort  on  the  part  of  the 
judiciary  to  protect  the  individual  in  Arizona  has  so  far  failed. 

I  have  been  interested  in  noting  in  the  court  decisions  this 
tendency  to  exalt  the  general  proposition  of  the  greatest  good 
to  the  greatest  number.  My  feeling  has  been  that  while  that 
must  necessarily  go  on,  while  we  will  continue  to  tenderly 
regard  the  mass,  at  the  same  time  we  must  be  very  careful  that 
we  do  not  lose  sight  of  the  units  which  make  the  mass.  (Ap- 
plause.) 

The  President:  After  all  is  said  and  done,  after  some- 
thing over  a  year's  experience  in  trying  to  point  the  way  to 
something  better,  so  far  as  our  profession  is  concerned,  and 
after  studying  all  the  contemporaneous  literature  on  the  sub- 
ject that  is  being  written  and  produced  in  the  different  sec- 
tions of  the  United  States,  T  remain  of  the  firm  conviction 
that  any  reform  in  connection  with  our  judicial  system,  of 
the  administration  of  justice,  the  raising  of  the  standards  of 
the  profession,  mast  come  from  the  elevation  of  the  indi- 
vidual lawyer  (applause),  and  that  whatever  effort  we  may 
ipake  in  any  direction,  we  must  have  that  as  the  objective. 
We  will  only  reach  a  position  of  distinct  advance  when  the 
profession  has  placed  itself  before  the  public  so  that  it  is 
recognized  as  a  civic  factor  and  that  can  only  be  done  by 
raising  the  standard  of  professional  ethics. 

The  next  figure  will,  from  the  viewpoint  which  it  has  not 
been  my  privilege,  except  for  a  very  short  and  insignificant 
period,  and  then  only  on  the  trial  bench,  to  occupy,  and  from 
which  to  view  the  law,  speak  to  you  of  the  shortcomings  of 
the  lawyer.  And  I  know  of  no  one  who  is  so  well  and 
thoroughly  able  to  tell  you  of  the  lawyer's  shortcomings  and 
the  possibilities  of  good  by  their  correction,  as  a  judge  of 
our  highest  court,  present  here  this  evening — I  refer  to 
Judge  Angellotti  of  the  Supreme  Court.     (Applause.) 


13 


Hon.  F.  M.  Angellotti  of  the  Supreme  Court  on  "Some 
of  the  Duties  of  the  Legal  Profession." 

Mr.  Justice  Angellotti.  Brethren  of  the  Bar :  To  those 
who  know  me,  it  is  probably  needless  to  say  that  I  occupy 
a  position  at  this  table  this  evening  somewhat  under  pro- 
test. My  good  friend,  Judge  Belcher,  the  Chairman  of  your 
Committee  on  Entertainment,  persuaded  me,  however,  that 
it  was  my  duty  to  accept  the  very  kind  invitation  to  partici- 
pate in  your  program,  and  so  I  am  here.  I  have,  however, 
avoided  a  great  deal  of  worry  by  writing  down  what  I  pro- 
pose to  say,  and  I  hope  you  will  pardon  me  for  reading  it. 

"Some  of  the  Duties  of  the  Legal  Profession" 

I  cannot  hope  to  say  much  that  is  new  upon  the  subject 
concerning  which  I  shall  ask  your  attention  for  a  few  mo- 
ments. But  it  should  play  such  an  important  part  in  the 
discussion  that  is  now  being  had  throughout  the  country  as 
to  the  necessity  of  reform  in  the  law  and  its  administration, 
that  I  feel  that  a  few  words  in  regard  thereto,  even  though 
but  reiterations  of  truths  that  have  been  uttered  many  times 
before,  may  be  of  some  interest. 

From  all  parts  of  the  United  States  we  hear  loud  and 
serious  complaints  regarding  our  system  of  law  and  the  man- 
ner of  its  administration.  It  is  patent  to  any  one  who  con- 
siders the  matter  at  all  that  popular  confidence  in  the  efficacy 
of  our  system  to  do  prompt  justice,  or  indeed  to  do  justice 
at  all  in  many  cases,  is  very  much  shaken.  It  is  needless  to 
point  out  why  nothing  could  be  more  deplorable  for  any 
country  than  such  a  condition  of  mind  on  the  part  of  its 
people.  While  we  all  know  that  we  are  living  in  an  age  in 
which  opinions  are  often  hastily  expressed  without  a  full 
understanding  of  the  facts  essential  to  a  comprehension  of 
the  questions  involved,  and  that  this  condition  of  the  pub- 
lic mind  in  regard  to  the  law  and  its  a'lministration  has 
been  intensified  to  an  extent  out  of  all  proper  proportion  to 
the  real  defects  by  many  most  unjust  accusations  and  criti- 
cisms, we  also  know  that  there  is  much  ground  for  complaint, 
and  that  the  results  in  the  administration  of  the  law  are  not 
in  all  respects  what  they  should  be.  The  people  have  the 
right  to  demand  as  speedy  and  efficient  an  enforcement  of 
the  law,  both  civil  and  criminal,  as  is  consistent  with  such 
rules  as  may  be  essential  to  the  doing  of  justice.  Thej'  reali^je 
the  absolute  necessity  of  a  system  that  will  produce  such 


14 

results,  and  they  have  always  shown  their  willingness  to  bear 
whatever  expense  may  be  necessary  to  maintain  and  admin- 
ister such  a  system.  When  we  contemplate  the  harassing  de- 
lays and  the  other  obstructions  that  in  all  parts  of  the 
country  have  become  so  common  in  the  administration  of  the 
law,  practically  amounting  in  very  many  cases  to  an  abso- 
lute denial  of  justice,  we  are  forced  to  admit  that  the  people 
are  not  getting  the  best  that  we  are  able  to  give  them  in  this 
regard.  I  say  "we"  because  it  is  to  our  profession  that  the 
people  have  the  right  to  look  and  to  a  great  extent  must  look 
for  such  reforms  as  are  necessary  in  such  matters,  and  be- 
cause for  such  real  defects  as  exist  our  profession  is  largely 
responsible.  It  is  not  my  purpose  here  to  attempt  to  point 
out  wherein  there  are  such  defects  that  can  be  remedied,  or 
what  the  remedies  should  be.  These  are  matters  concerning 
which  there  is  the  greatest  difference  of  opinion  among  law- 
yers. The  thought  that  I  am  endeavoring  to  express  is  simply 
that  it  is  our  duty  as  a  profession  to  ascertain  as  far  as  we 
can  wherein  our  system  is  imperfect,  and  wherein  the  remedy, 
if  any,  lies,  and  with  the  knowledge  derived  from  careful 
investigation  and  earnest  consideration,  to  give  our  best 
efforts  in  the  direction  of  the  accomplishment  of  necessary 
reforms.    So  much,  at  least,  is  due  from  us. 

And  first  of  all,  pursuing  this  general  thought,  a  great 
responsibility  rests  upon  us  in  the  matter  of  law  making. 
While  the  legal  profession  is  not  the  law-making  power  of 
our  government,  national  or  state,  by  reason  of  their  more 
adequate  knowledge  as  to  what  is  necessary  to  make  the  law 
accord  with  what  is  right  and  essential  to  the  doing  of  jus- 
tice under  the  conditions  existing  in  their  own  time,  and  by 
reason  of  the  influence  which  they  must  have  if  they  live  up 
to  the  traditions  of  their  profession,  lawyers  can  and  should 
be  a  great  factor  in  the  making  of  proper  laws.  They  un- 
doubtedly will  be  held  responsible  for  the  condition  of  the 
law,  although  they  do  not  constitute  the  direct  law-making 
power.  As  was  well  said  by  a  recent  writer  on  this  subject: 
**It  may  be  confidently  assumed  that  there  is  no  disagreement 
among  us  on  the  proposition  that  our  profession,  as  well  as 
any  other,  is  the  responsible  battalion  for  those  interests  of 
the  day  and  generation  in  which  it  specializes.  We  should 
unhesitatingly  hold  the  state  of  medical  knowledge  and  prac- 
tice to  be  the  honor  or  reproach  of  the  medical  profession  as 
a  whole;  and  the  state  of  any  other  science  or  business  is 
generally  held  to  be  the  honor  or  reproach  of  the  whole  body 
of  men  who  profess  it."  We  can  conceive  of  no  higher  duty 
on  the  part  of  lawyers  than  that  of  making  every  legitimate 
effort  to  procure  the  enactment  of  such  laws  as  are  essential 


15 

to  the  perfecting  of  our  system  and  the  making  it  adequate 
to  the  ideas  and  demands  of  our  age.  "We  owe  that  duty  to 
our  country  because  it  is  vital  to  our  country's  interest  that 
it  should  have  as  perfect  and  efficient  a  system  of  law  as  can 
^be  devised,  and  because  we  are  able  to  assist  in  that  work  by 
reason  of  the  knowledge  we  have,  or  at  least  should  have, 
concerning  the  subject  matter.  It  cannot  be  disputed  that 
if  we  are  to  live  up  to  the  obligations  of  our  citizenship  we 
must  give  to  our  country  the  benefit  of  our  efforts  and  in- 
fluence in  this  regard.  And  we  owe  that  duty  to  the  pro- 
fession of  which  we  are  members  that  it  may  not  be  dis- 
credited by  men,  and  found  inefficient  for  the  performance 
of  the  functions  for  which  it  is  designed. 

What  I  have  said  in  regard  to  our  duty  in  the  matter  of 
law  making,  though  not  confined  to  laws  relating  simply  to 
procedure,  is  specially  applicable  to  such  laws,  for  as  to 
these  the  people  must  necessarily  look  to  those  peculiarly 
fitted  to  advise  by  reason  of  their  knowledge  and  experience. 
We  know  as  a  matter  of  fact  that  there  are  few  laws  relat- 
ing to  procedure  the  enactment  of  which  is  not  due  to  the 
influence  of  the  legal  profession.  The  question  then  should 
be  continually  before  us  whether  the  system  of  procedure  de- 
clared by  our  written  law,  is  in  any  way  defective,  and  what, 
if  any,  changes  should  be  made  in  order  to  make  it  more  con- 
ducive to  the  ends  for  which  it  is  designed.  This  is  a  ques- 
tion that  calls  for  the  most  serious  consideration  before  any 
particular  change  is  decided  on  as  desirable,  for  one  of  our 
most  serious  evils  is  hasty  and  ill-considered  legislation.  It 
will  not  be  disputed  that  laws  relating  to  procedure  should 
be  as  simple  as  is  consistent  with  the  nature  of  the  subject 
to  which  they  relate.  There  are  very  many  who  believe  that 
our  statutory  regulations  in  this  regard  are  too  numerous 
and  complex,  and  that  by  reason  thereof  much  unnecessary 
time  is  lost  and  unnecessary  expense  imposed  in  the  conduct 
of  a  cause,  and  also  that  by  reason  thereof  the  real  merits 
of  the  controversy  are  too  much  subordinated  to  the  deter- 
mination of  questions  of  mere  practice.  We  have  no  less  an 
authority  than  that  distinguished  member  of  our  profession, 
President  Taft,  declaring  as  follows:  "The  codes  of  pro- 
cedure are  generally  much  too  elaborate.  It  is  possible  to 
have  a  code  of  procedure  simple  and  effective.  This  is  shown 
by  the  present  procedure  in  the  English  courts,  most  of  which 
is  framed  by  rules  of  court."  In  the  report  of  the  com- 
mittee appointed  recently  by  the  American  Bar  Association 
to  suggest  remedies  and  formulate  laws,  we  find  the  follow- 
ing: "A  statute  going  into  minute  detail  to  begin  with,  soon 
to  be  swollen  by  legislative  additions  and  overgrown  with 


16 

amendments  and  a  gloss  of  judicial  decisions,  is  not  the  prac- 
tice act  of  the  future.  The  ideal  would  be  a  clear  and  scien- 
tific outline,  laying  out  the  limits  and  the  lines  of  procedure, 
to  be  developed  by  rules  of  court  which  may  be  enacted,  re- 
vised or  amended  or  abrogated  by  experts  as  the  exigencies 
of  judicial  administration  demand."  It  is  obvious  that  the 
more  simple  the  rules  relating  to  procedure,  the  less  would 
be  the  time  devoted  in  the  courts,  both  7iisi  prius  and  appel- 
late, to  the  consideration  and  determination  of  questions  of 
practice,  and  the  greater  would  be  the  opportunity  for  a 
prompt  determination  of  a  case  on  its  merits.  But  as  said 
before,  it  is  not  my  purpose  tonight  to  discuss  the  merits  of 
any  suggestion  or  recommendation  regarding  the  matter  of 
changes  in  these  laws.  What  has  been  said  in  that  behalf 
has  been  said  solely  with  the  view  to  emphasize  the  necessity 
on  our  part,  if  we  would  discharge  the  obligations  resting  on 
us  as  members  of  our  profession,  of  constantly  endeavoring 
to  give  to  the  state  as  perfect  and  efficient  a  system  of  prac- 
tice as  we  can.  There  are  those  who  assert  that  the  lawyers 
deliberately  use  their  influence  in  the  matter  of  legislation  to 
render  the  law  as  complicated  and  confusing  as  possible,  on 
the  theory  that  such  a  condition  is  more  conducive  to  com- 
plicated and  profitable  litigation,  that  is,  profitable  to  the 
lawyer  if  not  to  the  litigant.  While  such  a  charge  deserves 
no  notice,  it  is  probably  true  that  the  profession  as  a  whole 
has  been  negligent  in  not  giving  more  attention  to  this  mat- 
ter. In  this  commercial  age  the  busy  lawyer,  like  the  busy 
member  of  any  other  profession  or  calling,  is  often  so  en- 
grossed with  his  own  personal  and  business  affairs  that  he 
has  little  time  or  disposition  for  the  service  of  the  state  or 
his  profession.  But  it  is  encouraging  that  all  over  the  United 
States  the  lawyers  are  awakening  to  the  necessity  of  giving 
more  of  their  time  and  attention  to  this  matter,  and  nowhere 
has  their  disposition  in  this  behalf  been  manifested  to  a 
greater  degree  than  in  our  own  state.  Within  a  few  years 
two  great  reforms  designed  to  obviate  unnecessary  delay  in 
the  final  determination  of  causes,  an  evil,  than  which  there 
is  none  greater,  have  been  accomplished.  The  first  of  these 
was  the  constitutional  amendment  establishing  our  district 
courts  of  appeal  and  prescribing  their  functions.  The  sys- 
tem thus  established  has  proved  all  that  was  claimed  for  it 
by  the  lawyers  of  this  state,  who  themselves  designed  it  and 
to  whose  advocacy  and  influence  its  adoption  must  be  cred- 
ited. The  work  done  under  this  system  in  the  few  years  the 
new  courts  have  been  in  existence  was  carefully  set  forth  in 
a  paper  recently  read  by  Justice  Lucien  Shaw  before  the 
Los  Angeles  Bar  Association.    The  actual  practical  result  of 


17 

the  greatest  interest  and  benefit  to  the  people  generally  is 
that  the  time  between  the  date  when  the  record  on  appeal  is 
filed  and  the  date  when  the  cause  is  brought  to  a  hearing  in  the 
appellate  court  has  already  been  reduced  from  three  or  four 
years  to  aoout  six  months.  At  the  recent  January  session 
of  the  supreme  court  there  were  civil  cases  upon  the  cal- 
endar for  hearing  that  were  there  solely  because  they  had 
been  reached  in  ordinary  course,  in  which  the  record  on  ap- 
peal had  been  filed  as  late  as  July,  1909.  It  is  now  apparent 
that  by  reason  of  this  amendment,  the  time  will  speedily 
arrive,  if  indeed  it  has  not  already  arrived,  when  an  appeal 
may  be  heard  by  the  proper  appellate  court  (supreme  or 
district)  at  the  session  next  following  the  filing  of  the  record 
of  appeal  and  the  lapse  of  time  allowed  by  the  rules  for  the 
filing  of  the  briefs  of  counsel.  The  second  of  these  reforms 
was  one  designed  to  make  for  greater  expedition  in  the 
matter  of  bringing  to  the  proper  appellate  court  the  record 
to  be  used  on  an  appeal  in  a  criminal  case,  to  prevent  as 
far  as  it  was  possible  by  written  law  to  do  so,  the  lapse  of  a 
long  period  of  time  between  a  verdict  of  conviction  of  a  pub- 
lic offense  and  the  determination  of  the  cause  on  appeal.  The 
delays  that  had  occurred  in  this  regard  were  a  standing  en- 
couragement to  crime  and  a  reproach  to  our  civilization.  The 
new  method  has  not  been  in  force  long  enough  to  demonstrate 
its  effectiveness,  having  been  enacted  into  law  only  at  the 
last  session  of  our  legislature,  but  I  have  no  hesitation  in  as- 
serting that  while  there  are  doubtless  some  minor  defects 
therein,  it  will  be  found  to  accomplish  its  primary  object, 
and  that  it  will  do  so  without  endangering  in  the  slightest 
degree  any  substantial  right  of  any  person  charged  with 
crime.  Delay  in  the  disposition  of  appeals  in  criminal  cases 
can  be  still  further  obviated  by  a  rule  of  court  requiring  every 
such  appeal  to  be  heard,  unless  good  cause  to  the  contrary  is 
shown,  on  the  first  motion  day  of  the  court  after  the  filing  of 
the  record.  I  am  of  the  opinion  also  that  it  would  be  con- 
ducive to  a  speedier  and  more  satisfactory  determination  of 
criminal  appeals  if  the  law  were  so  amended  as  to  make  it 
the  duty  of  the  district  attorney  of  the  county  from  which 
the  appeal  is  taken  to  participate  in  the  matter  of  the  ap- 
peal in  conjunction  with  the  attorney-general,  at  least  to  the 
extent  of  making  that  officer  acquainted  with  such  of  the 
facts  thereof  as  are  necessary  to  enable  him  to  promptly  pre- 
sent such  argument  as  is  desirable  in  the  appellate  court. 
These  two  reforms  already  made  are  referred  to  solely  as  in- 
stances of  work  recently  done  by  the  lawyers  of  this  state  in 
the  matter  of  legislation  designed  to  makp  our  system  more 
effectual  for  justice.    That  the  members  of  our  profession  in 


18 

California  are  awakened  to  their  responsibility  in  this  mat- 
ter is  shown  bj"-  the  interest  that  is  now  being  manifested 
therein  by  members  of  this  Association  and  those  of  the  Los 
Angeles  Bar  Association,  and  also  by  the  recent  institution, 
under  the  mast  favorable  auspices,  of  the  California  Bar 
Association,  one  of  the  declared  objects  of  which  is  *'to  cul- 
tivate and  advance  the  science  of  jurisprudence",  and  "to 
promote  reform  in  the  law  and  in  judicial  procedure."  As 
was  recently  said  by  Mr.  Richard  Olney,  in  addressing  the 
new  State  Bar  Association  of  Massachusetts,  in  such  matters 
"only  a  Bar  Association  which  is  representative  of  the  en- 
tire body  of  lawyers  of  a  state  can  speak  with  the  necessary 
authority  or  can  hope  to  have  the  necessary  influence." 

Probably  more  important,  however,  than  anj^  other  obli- 
gation resting  upon  us  is  that  of  doing  our  utmost  to  create 
and  maintain  a  high  standard  of  ability  and  conduct  on  the 
part  of  our  members,  both  at  the  bar  and  on  the  bench. 
Oiven  the  best  sj'^stem  of  law  attainable,  the  nature  of  the 
subject  matter  is  such  that  much  must  necessarily  be  left  to 
the  industry,  intelligence  and  honesty  of  those  who  are  to 
assist  in  its  administration.  To  the  extent  that  these  fail  in 
their  duty  in  this  behalf,  by  just  so  much  will  the  efficiency 
of  the  whole  system  be  impaired,  and  to  the  extent  that  it 
is  so  impaired  will  the  profession  be  justly  discredited.  It 
goes  without  saying  that  our  judges  should  have  the  capacity 
to  discharge  the  important  duties  devolving  on  them  and  the 
determination  and  ability  to  discharge  those  duties  with  the 
mast  absolute  fairness  and  impartiality,  and  that  they  should 
assist  in  maintaining  respect  for  our  laws  and  our  courts  by 
such  a  course  of  conduct  as  is  best  calculated  to  avoid  even  a 
suspicion  of  partiality  or  improper  influence.  Without  com- 
petent and  impartial  judges  a  satisfactory  administration  of 
the  law  is,  of  course,  impassible.  There  are  none  so  capable 
of  determining  who  are  by  character  and  mental  qualifications 
fitted  to  act  as  judicial  officers  as  are  the  members  of  our  pro- 
fession, and  there  are  none  who  should  be  more  interested 
in  maintaining  the  highest  standard  in  regard  thereto.  The 
influence  of  the  profession  in  this  direction  if  wisely  and  im- 
partially exerted  should  be  mast  effectual,  provided  it  has 
the  confidence  of  the  community  in  its  sincerity  and  purity 
of  motive  to  the  extent  it  should  have.  And  as  it  is  like- 
wise essential  that  the  judges  should  have  to  as  great  an 
extent  as  is  passible  the  confidence  of  the  general  public  in 
their  integrity,  impartiality  and  ability,  the  influence  of  the 
profession  should  also  be  steadily  exerted  in  maintaining 
that  confidence  wherever  they  believe  it  to  be  warranted.  To 
maintain  the  respect  due  to  courts  of  justice  and  judicial 


19 

officers  is  one  of  the  obligations  imposed  by  our  statute  on 
all  persons  admitted  to  practice  law,  not  because  of  any  par- 
ticular consideration  for  the  persons  who  happen  to  occupy 
judicial  office,  but  because  it  is  essential  to  any  reasonably 
adequate  system  of  administering  justice  that  the  arbiters 
whose  decisions  are  to  settle  controversies  should  not  only 
deserve  to  have  the  confidence  of  the  community,  but  that 
they  should  have  it. 

To  quote  from  the  report  of  the  Committee  appointed  by 
the  American  Bar  Association  to  report  a  code  of  ethics  for 
the  legal  profession : 

**The  purity  and  efficiency  of  judicial  administra- 
tion, which,  under  our  system,  is  largely  governmental, 
depends  as  much  upon  the  character,  conduct  and  de- 
meanor of  attorneys  ...  as  upon  the  fidelity  and 
learning  of  courts,  or  the  honesty  and  intelligence  of 
juries. ' ' 

Those  who  have  any  proper  conception  of  the  true  func- 
tions of  the  lawyer  know  that  he  is  bound  by  every  con- 
sideration of  loyalty  to  his  country  and  to  his  profession  to 
assist  in  maintaining  the  law  in  its  integrity,  and  to  abstain 
from  any  act  designed  to  obstruct  or  prevent  the  prompt  de- 
termination of  a  cause  in  accord  with  the  law.  He  owes  no 
duty  to  his  client  that  is  paramount  to  this.  The  lawyer  who 
regards  himself  as  simply  a  personal  employee  or  retainer  of 
his  client,  whose  duty  it  is,  by  every  artifice  of  which  he  is 
capable,  to  assist  the  client  in  circumventing  and  evading 
the  law,  has  no  proper  place  in  our  ranks,  and  the  sooner  he 
is  removed  therefrom  the  better  it  will  be  for  our  profession 
and  society.  To  quote  again  from  the  report  of  the  American 
Bar  Association  Committee  such  lawyers  "not  only  lower 
the  morals  within  the  profession,  but  they  debase  our  high 
calling  in  the  eyes  of  the  public.  They  hamper  the  admin- 
istration and  even  at  times  subvert  the  ends  of  justice."  It 
is  doubtless  true,  notwithstanding  the  widespread  idea  of  the 
public  to  the  contrary,  that  there  are  comparatively  few 
members  of  the  bar  who  would  designedly  allow  themselves 
to  be  used  for  any  such  purpose,  and  I  have  no  hesitation  in 
asserting  that  there  is  no  profession  or  calling  that  numbers 
among  its  members  a  greater  proportion  of  high  minded  and 
patriotic  citizens,  men  who  have  the  most  exalted  idea  of  the 
dignity  and  honor  of  their  calling  and  who  would  not  con- 
sciously act  in  a  manner  subversive  thereof.  However,  to 
quote  again  from  the  report  of  the  American  Bar  Association 
Committee : 


20 

"We  cannot  be  blind  to  the  fact  that  however  high 
may  be  the  motives  of  some,  the  trend  of  many  is  avray 
from  the  ideals  of  the  past,  and  the  tendencv  more  and 
more  to  reduce  our  high  calling  ...  .  to  a  mere 
means  of  livelihood,  or  of  personal  aggrandizement." 

Can  we  doubt  for  a  moment  the  difference  it  must  make 
in  the  efficiency  of  our  legal  system  for  justice  and  in  the 
attitude  of  the  people  toward  the  law  and  the  courts  and  the 
bar,  if  members  of  the  profession  generally  constantly  live 
up  to  the  obligations  imposed  upon  them  as  lawyers,  and 
publicly  place  the  ban  of  their  disapproval  upon  those  who 
do  not?  There  is  no  higher  standard  established  for  a  law- 
yer anywhere  than  that  prescribed  by  the  portion  of  our  own 
Code  of  Civil  Procedure  that  enumerates  his  duties,  duties 
that  each  person  admitted  to  the  bar  solemly  promises  to 
perform.  With  one  exception  it  is  the  same  as  the  provision 
of  the  Alabama  statute  on  the  same  subject,  the  statute  taken 
by  the  American  Bar  Association  as  the  basis  for  its  Code 
of  Ethics,  and  that  exception  consists  in  the  addition  of  an 
important  requirement.  By  our  code  provision  it  is  declared 
to  be  the  duty  of  a  lawyer  to  support,  not  to  seek  to  evade  or 
circumvent  in  the  interest  of  a  client,  the  constitution  and 
laws  of  the  United  States  and  of  this  state — to  maintain  the 
respect  due  to  courts  of  justice  and  judicial  officers,  which 
implies  that  he  shall  be  guilty  of  no  act  tending  to  bring  the 
courts  into  disrepute — to  counsel  or  maintain  such  actions, 
proceedings  or  defenses  only  as  app6^ar  to  him  legal  or  just, 
except  the  defense  of  a  person  charged  with  a  public  offense— r 
to  emplo.y  for  the  purpose  of  maintaining  the  causes  con- 
fided to  him  such  means  only  as  are  consistent  with  truth, 
and  never  seek  to  mislead  the  judge  or  any  judicial  officer  by 
an  artifice  or  false  statement  of  fact  or  law — to  maintain  in- 
violate the  confidence,  and  at  every  peril  to  himself,  to  pre- 
serve the  secrets  of  his  client — to  abstain  from  all  offensive 
personalit.y,  and  to  advance  no  fact  prejudicial  to  the  honor 
or  reputation  of  a  part.y  or  witness,  unless  required  by  the 
justice  of  the  cause  with  which  he  is  charged — not  to  en- 
courage either  the  commencement  or  continuance  of  an  action 
or  proceeding  from  any  corrupt  motive  of  passion  or  in- 
terest,— never  to  reject,  for  any  consideration  to  himself,  the 
cause  of  the  defenseless  or  oppressed.  These  are  the  specific 
obligations  that  all  of  us  have  assumed,  and  that,  as  honor- 
able men,  we  are  bound  to  fulfill.  They  should  be  graven 
upon  the  heart  of  every  lawyer  and  should  constitute  the 
rule  of  his  life  as  long  as  he  pursues  his  chosen  calling.  It  is 
a  high  standard  that  is  thus  established,  but  it  is  not  at  all 


21 

impossible  of  attainment.  To  its  attainment  by  any  lawyer 
nothing  is  essential  but  common  honesty  and  the  ability  to 
think  clearly  and  right.  No  duty  of  the  profession  is  more 
important  than  that  of  maintaining  a  full  realization  on  the 
part  of  the  lawyers  generally  of  the  nature  and  extent  of 
their  obligations  to  society  in  the  matter  of  the  administra- 
tion of  the  law,  and  a  determination  on  their  part  to  live  up 
to  these  obligations.  Nothing  is  more  essential  to  the  purity 
and  efficiency  of  judicial  administration. 

I  have  spoken  in  a  very  general  way  of  some  only  of  the 
duties  of  the  legal  profession.  In  closing  I  wish  simply  to 
add  that  it  is  upon  such  associations  as  this  and  our  new 
State  Bar  Association  that  we  must  largely  relj"^  for  effective 
work  in  the  direction  suggested.  It  would  appear  to  go  with- 
out saying  that  every  true  and  loj^al  member  of  our  profes- 
sion should  be  an  active  member  of  some  such  association, 
and  contribute  his  counsel  and  best  efforts  to  such  work  as 
can  be  efficiently  done  only  by  means  of  such  an  organiza- 
tion. The  results  that  would  thereby  be  attained  would  be 
easily  worth  every  sacrifice  made — they  would  redound  not 
only  to  the  credit  and  glory  of  our  profession,  but  to  the  ever- 
lasting benefit  of  our  beloved  country.  To  use  the  quaint 
words  spoken  by  Chief  Justice  Emery  of  Maine : 

"There  is  nothing  in  this  world  better  than  justice. 
There  is  nothing  in  this  world  worse  than  injustice.  He 
who  shall  remove  some  cause  of  injustice,  or  who  shall 
make  more  straight  and  easy  the  road  to  just  judgments, 
will  confer  more  good  upon  mankind  than  even  he  who 
shall  make  two  blades  of  grass  grow  where  but  one  grew 
before. ' ' 

The  President:  In  speaking  of  the  viewpoint  from 
which  these  subjects  are  to  be  discussed,  it  is  a  marvelous 
opportunity  that  one  has,  if  he  has  served  in  different 
capacities,  as  lawyer  at  the  bar,  judge  upon  the  trial  bench 
and  judge  of  the  Appellate  Court.  The  trial  judge  deals 
with  the  jury.  After  something  over  thirty  years  on  the  fir- 
ing line,  handling  probably  as  large  a  variety  of  cases  as 
comes  to  the  lot  of  the  individual  lawyer,  and  having  for  a 
very  short  period  of  time,  by  the  grace  of  a  tragedj^,  occu- 
pied the  superior  bench  of  this  State,  I  have  some  precon- 
ceived notions  about  our  jury  system. 

One  morning  in  the  month  of  May  in  a  certain  year  many 
years  ago,  I  think  it  was  1883,  although  I  have  forgotten 
definitely,  a  judge  of  the  Superior  Court  of  this  State  was 
found  dead  on  his  porch  with  a  bullet  hole  in  his  head.    The 


22 

bar  was  divided.  Some  said  that  he  committed  suicide  and 
some  said  that  he  was  murdered.  At  all  events,  the  Governor 
circulated  a  reward  for  the  arrest  and  conviction  of  the 
parties  who  committed  the  crime.  I  was  appointed  to  suc- 
ceed that  gentleman,  and  for  a  period  of  a  few  months  occu- 
pied the  bench  of  the  Superior  Court  in  one  of  the  mountain 
counties.  My  first  experience,  from  the  viewpoint  of  a  trial 
judge,  occurred  during  my  short  incumbency  upon  that 
bench. 

The  first  case  that  I  submitted  to  the  jury  was  an  im- 
portant murder  case,  and  I  naturally  had,  as  any  young  law- 
yer would  have — I  think  Judge  Sullivan  and  myself  at  that 
time  were  the  youngest  superior  judges  on  the  bench  of 
the  State — I  had  that  anxiety  and  was  very  particular  to 
see  that  the  charge  the  jury  should  receive  from  me  would 
be  properly  shaped.  I  had  the  terror  that  every  superior 
judge  has,  and  which  he  ought  not  to  have,  in  instructing  the 
jury — ^terror  of  a  threatened  reversal.  It  was  said  by  a  wag 
down  in  Georgia,  sitting  on  the  Supreme  Court  of  that  State, 
that  some  courts  sit  for  the  sole  purpose  of  reversing  the 
errors  of  the  other  courts  and  adhering  to  their  own.  I  ven- 
ture to  say  that  99  per  cent  of  the  young  lawyers  who  oc- 
cupy the  bench  are  afraid  of  their  shadows  when  they  are 
first  called  upon  to  instruct  a  jury. 

This  was  a  murder  case,  a  vulgar,  common  one,  where  a 
man  had  been  shot  in  the  back,  or  shot  through  cowardice. 
The  man  was  afraid  of  his  life,  and  he  was  not  pressed  to  the 
wall  and  had  no  business  to  kill,  but  he  killed.  Before  I 
instructed  that  jury  I  spent  nights  and  days  in  trying  to  find 
out  what  the  law  was  and  how  far  I  might  go  in  instructing 
that  jury,  always  looking  to  a  possible  reversal  by  the  courts 
above,  knowing  that  my  career  was  short  and  desiring  to  have 
the  reputation  of  not  being  reversed  by  the  appellate  court. 
I  framed  my  instructions  according  to  the  strict  letter  of 
the  law,  as  I  believed  it  to  be,  before  a  set  of  jurymen  the 
peers  of  the  defendant  and  who  were  supposed  to  take  their 
wisdom  and  gospel  from  the  court.  The  jury  went  out  and 
they  stayed  out  for  a  long  time.  In  my  judgment  there  was 
no  reason  for  them  to  so  stay  out,  but  they  ultimately  came 
in  and  asked  for  further  instructions  on  the  part  of  the 
court.  I  said  to  the  foreman  of  the  jurj'-  **Do  you  desire 
any  further  instructions  from  the  court?"  He  said,  "Yes, 
we  do."  He  was  a  tall  Kentuckian,  and  had  once  been  a 
justice  of  the  peace,  and  during  his  odd  times  at  that  time 
was  sawing  wood  in  the  neighborhood  for  an  honest  living. 
He  said,  "Judge,  what  we  would  like  to  know  is,  if  we  find 


23 

this  man  guilty,  how  long  you  will  send  him  to  the  peni- 
tentiary for?"  I  said,  "Gentlemen,  have  you  heard  the  in- 
structions of  the  court?"  "Oh,  yes,  we  understand  the  in- 
structions of  the  court,  but  we  would  like  to  know  how  much 
you  are  going  to  give  the  fellow. ' '  I  said :  * '  Gentlemen,  you 
have  to  follow  the  instructions  of  the  court.  As  to  fhe  pun- 
ishment that  is  to  be  meted  out  in  the  event  that  you  shall 
find  this  man  gitilty,  that  is  a  question  that,  under  the  laws 
of  the  country" — and  I  said  this  in  a  very  dramatic  tone — 
"devolves  upon  the  dourt."  The  jury  retired  and  I  found 
out  what  happened  a  little  later.  The  foreman  of  the  jury 
said  to  the  assembled  jury  after  they  had  again  retired :  "Now, 
you  see  that  judge,  he  will  give  this  fellow  the  full  penalty 
of  the  law."  And  therefore  they  acquitted  him.  (Laughter.) 
On  this  question  of  instructions  to  the  jury,  the  viewpoint 
is  everything.  After  these  thirty-five  years  on  the  firing  line 
I  have  my  own  views,  as  I  state,  of  the  question.  But  I  am 
sure  the  subject  will  be  illuminated  to  the  Association  from 
the  viewpoint  of  the  Attorney-General  of  this  State  in  a  most 
interesting  way  and  one  of  which  we  may  take  notice.  I  have 
the  pleasure  of  introducing  to  you  the  Attorney-General.  (Ap- 
plause.) 

Hon.  U.  S.  Webb,  State  Attorney-General,  on  ''Instruc- 
tions to  Juries." 

Attorney-General  Webb.  Mr.  President  and  Fellow 
Members  of  the  Bar  Association:  It  may  have  occurred  to 
you  that  but  little  can  be  said  upon  this  subject,  and,  if  such 
be  true,  that  fact  furnishes  ample  justification  for  its  selec- 
tion. 

My  remarks  this  evening  will  be  directed  to  this  subject 
mainly  because  of  the  receipt  a  little  while  ago  from  this 
Association  of  this  circular  letter: 

"Dear  Sir:  This  committee  is  informed  that  in  at 
least  one  of  the  United  States  it  is  not  the  practice  to 
instruct  the  jury  in  criminal  cases,  but  that  the  jury  is 
the  judge  of  the  law  and  the  facts. 

"We  recognize  that  reversals  on  the  ground  of  er- 
rors in  giving,  refusing  or  modifying  instructions  are 
quite  frequent. 

"Will  you  kindly  inform  us: 

"1.     Are  instructions  required  by  law  in  your  State? 

"2.     Reference  to  the  statute  governing  the  same? 

"3.  If  instructions  are  required,  what  is  your  ex- 
perience with  respect  to  reversals  for  errore  in  instruc- 
tions? 


24 

"4.  If  instructions  are  not  required,  what  is  your 
experience  as  to  the  efficiency  of  the  law  with  respect  to 
the  conviction  of  criminals,  and  the  justness  of  verdicts? 

"5.  What  is  your  opinion  with  respect  to  the  neces- 
sity of  instructions  in  criminal  cases? 

"6.  If  you  deem  instructions  necessary,  what,  if 
any,  limits  do  you  think  should  be  placed  thereon? 

"Any  information  that  you  deem  of  value  to  the 
committee,  in  addition  to  the  answers  to  the  foregoing 
questions,  will  be  much  appreciated." 

As  reply  to  this  letter  has  not  heretofore  been  made,  this 
occasion  offers  an  opportunity  for  the  performance  of  a 
double  service. 

You  will  note  in  this  letter  the  unhesitating  declaration: 
"We  recognize  that  reversals  on  the  ground  of  errors  in  giv- 
ing, refusing  or  modifying  instructions  are  quite  frequent," 
and  the  questions  following  that  declaration  are  evidently 
designed  to  elicit  infomaation  which  will  enable  the  Bar  As- 
socation  to  recommend  such  changes  in  the  law  as,  in  its  judg- 
ment, will  most  fittingly  avoid  these  frequent  reversals. 

Under  the  wisest  system  that  may  be  devised  by  finite 
minds,  it  could  not  be  hoped  that  reversals  would  be  entirely 
avoided.  Perfection  is  found  alone  in  the  infinite,  but  as 
time  progresses  it  is  not  too  much  to  hope  that  our  systems 
of  procedure  will  approach  more  and  more  nearly  perfection. 

This  letter,  you  have  noted,  is  limited  in  the  scope  of  its 
inquiry  to  instructions  in  criminal  cases,  and  evidently  its 
author  entertained  no  manner  of  doubt  that  reversals  in 
criminal  cases  in  this  jurisdiction  because  of  errors  in  instruc- 
tions given,  or  errors  in  refusing  instructions  requested  were 
very  frequent. 

It  is  not  surprising  that  men  whose  occupations  lead  them 
along  paths  other  than  those  of  the  legal  profession  should 
have  this  belief,  whether  such  belief  be  founded  in  fact  or 
otherwise,  but  it  might  properly  occasion  some  surprise  to 
lawyer  or  layman  that  members  of  the  legal  profession,  prac- 
titioners in  this  State,  should  entertain  the  belief  that  crim- 
inal cases  in  our  courts  are  frequently  reversed  because  of 
erroneous  instructions  given,  or  errorless  instructions  refused, 
if  such  be  not  the  case. 

I  never  see  the  faith  of  another  shattered  without  a  feel- 
ing of  sorrow;  I  never  see  another's  idol  topple  over  without 
a  feeling  of  regret,  but  if  the  faith  be  not  well-founded,  or 
the  idol  be  a  false  one,  neither  should  endure. 

Upon  the  receipt  of  this  letter,  I  felt  that  there  was  much 
doubt  of  the  correctness  of  the  facts  assumed  by  the  writer, 


25 

and  this  led  -me  to  a  brief  investigation  of  the  subject.  That 
investigation  discloses  some  interesting  results,  not  all  of 
which  are  pertinent  to  this  particular  subject,  and  not  all  of 
those  which  are  pertinent  need  here  be  given. 

I  found  that  during  the  last  four  years  the  appellate 
courts  of  this  State  (and  in  that  term  I  include  the  Supreme 
and  the  District  Courts  of  Appeal),  have  finally  determined 
211  criminal  appeals.  These  appeals  involve  practically  every 
criminal  charge  known  to  our  statutes,  and  very  many  more 
than  were  known  to  the  common  law. 

In  each  of  these  cases  juries  have  been  impanelled,  evidence 
introduced  and  the  jury  thereupon  instructed  as  to  the  law 
which  should  guide  them  in  reaching  their  determination.  The 
records  show  that  the  time  required  by  the  court  in  deliver- 
ing its  charge  in  these  several  cases  must  have  varied  from  a 
few  minutes  to  a  few  hours,  and  even  the  most  unskilled 
and  unwary  in  the  practice  of  criminal  law  must  know  that 
the  probability  of  error  in  instruction  grows  with  the  length 
of  the  charge,  and  many  of  the  charges  which  I  have  exam- 
ined were  abundantly  long  enough  to  have  contained  a  far 
greater  number  of  errors  than  were  actually  found  therein. 

Of  the  211  cases  passed  upon  by  the  appellate  courts  dur- 
ing the  period  mentioned,  39  were  reversed  and  172  were 
aflSrmed;  81 14  per  cent  affirmed  and  18y2  per  cent  reversed, 
or,  8iy2  cases  out  of  each  100  were  found  free  from  reversible 
error,  while  in  ISYo  cases  out  of  100  error  which,  in  the  judg- 
ment of  the  court,  had  prejudiced  the  defendants'  rights, 
was  disclosed. 

Affirmance,  of  course,  is  a  declaration  by  the  reviei^ing 
court  that  no  error  prejudicial  to  the  rights  of  the  defendant 
was  found  in  the  instructions  given  to  the  jury,  or  elsewhere 
in  the  record.  The  reversal  is  a  declaration  that  the  record 
of  the  trial  disclosed  error  or  errors  prejudicial  to  defend- 
ant's rights. 

It  has  struck  you,  I  doubt  not,  that  the  number  of  rever- 
sals is  not  large,  but  if  all  or  many  of  these  reversals  resulted 
from  errors  in  instructions,  much  necessity  would  be  thereby 
shown  for  a  change  in  our  system  upon  this  matter,  but  no 
change  should  ever  be  made  in  a  law  which  is  working  satis- 
factorily. 

In  these  reversed  cases  error  in  instructions  given  or  error 
in  refusing  instructions  requested  was  found  in  eight  cases. 
Of  the  211  cases  examined  by  the  appellate  courts  the  charge 
of  the  court  was  found  to  be  free  from  reversible  erro.-  in  2C3 
cases.  Thus,  the  record  stands :  Correct  charges  given,  203 ; 
incorrect  charges  given  or  proper  requests  refused  in  a  total 
of  eight. 


26 

Let  it  not  be  thought  that  the  attack  upon  instructions 
was  successful  whenever  made,  for,  in  far  more  than  half 
of  these  211  eases  vigorous  attacks  were  made  upon  the  charge 
of  the  court,  but  the  charge  was  found  proof  against  such 
attacks  in  all  but  the  eight  cases  mentioned. 

We  may  regret  that  error  was  found  in  the  charges  in 
these  eight  cases,  but  we  may  well  hesitate  to  change  the  law 
upon  this  subject,  lest,  in  abandoning  a  system  which  is  work- 
ing with  remarkable  success,  we  invite  evils  greater  than  any 
that  now  beset  us,  and  fly  to  others  we  know  not  of. 

From  these  facts  thus  gathered  from  the  records,  I  am 
constrained  to  answer  that  **  errors  in  giving,  refusing  or 
modifying  instructions"  in  criminal  cases  in  this  State  are 
not  ** quite  frequent." 

Our  Constitution  provides  that: 

"Judges  shall  not  charge  the  jury  with  respect  to 
matters  of  fact,  but  may  state  the  testimony  and  declare 
the  law." 

Jurors  are  the  exclusive  judges  of  all  questions  of  evidence, 
and  the  statement  of  testimony  by  the  court  is  seldom  advan- 
tageous, and  always  hazardous.  If  the  jury  has  not  correctly 
understood  the  testimony  as  it  has  been  given  in  the  progress 
of  the  trial,  little  hope  is  there  that  that  understanding  will 
be  improved  through  the  court's  repetition  of  it,  and  great 
danger  is  there  that  the  court's  statement  of  the  testimony 
and  the  record  will  not  always  agree. 

"Well  may  all  questions  of  fact  be  left  with  the  jury,  but 
the  jury  is  composed  of  men  untrained  in  the  law,  and  a  clear 
and  not  too  long  statement  of  the  rules  of  law  proper  to  be 
applied  to  the  evidence  must  aid  them. 

This  statement  of  the  law  by  the  court,  however,  should 
be  as  brief  as  the  facts  will  warrant.  The  ground  should  be 
covered  once,  but  not  more  frequently.  The  definitions  should 
be  couched  in  terms  which  the  average  individual  may  com- 
prehend and  expressions  not  familiar  to  all  should  be  avoided 
with  scrupulous  care. 

The  charge  to  the  jury  furnishes  no  proper  or  appro- 
priate place  for  learned  disquisitions  upon  the  law. 

The  careful,  prudent  and  experienced  judge  well  realizes 
that  "examples  may  be  heaped  until  they  hide  the  rule  that 
they  were  made  to  render  plain,"  and  thus  avoids  repetitions, 
restatements,  multitudinous  examples  and  involved  defini- 
tions. 

I  have  never  known  a  judgment  to  be  reversed  because  a 


27 

l^gal  principle  necessary  to  the  jury 's  aid  was  not  stated  more 
than  once,  while  many  charges  are  open  to  criticism  because 
the  judge  has  not  contented  himself  with  such  single  state- 
ment. 

I  have  seen  the  definition  of  "reasonable  doubt"  in  the 
charge  of  the  court  given  in  a  half  dozen  differing  and  vary- 
ing forms,  when  any  one  of  them  would  have  been  sufficient, 
and  the  several  definitions,  when  read  together,  were  so  calcu- 
lated to  mislead  and  confuse  that  if  Heaven's  saints  are  ever 
sad,  the  spirit  of  Chief  Justice  Shaw  must  often  grieve. 

I  have  seen  pages  of  manuscript  devoted  to  a  laudable  but 
misguided  effort  to  make  the  term  "moral  certainty"  more 
clear  than  the  words  themselves,  and,  at  its  conclusion,  the 
only  thing  which  had  been  made  sure  was  that  the  jury  were 
morally  certain  that  they  did  not  know  what  the  judge  was 
talking  about. 

Though  ' '  circumstantial  evidence ' '  is  not  new,  the  efforts 
made  to  define  it  in  some  of  the  charges  would  fairly  lead  one 
to  believe  the  author  of  the  charge  regarded  himself  in  the 
light  of  a  discoverer. 

The  trial  judge  must  remember  that  the  jury  is  composed 
of  men  of  average  intelligence,  but  untrained  in  the  law,  and 
the  charge  should  be  framed  with  these  facts  ever  in  mind, 
and  delivered  with  the  single  purpose  to  so  aid  the  jury  that 
they  may  apply  to  the  facts  the  proper  legal  rules.  To  at- 
tempt more  is  inexcusable,  and  to  do  less  is  indefensible. 

Every  crime  known  to  the  statute  has  been  before  the 
courts  many  timas.  Charges  upon  each  have  been  given,  and 
examined  and  criticised  and  approved  time  out  of  number, 
and  small  need  is  there  at  this  day  to  discard  in  any  case  that 
which  has  been  found  good  in  favor  of  that  which  is  untried. 

As  said  by  the  Supreme  Court  of  this  State  in  a  recent 
case: 

"There  is  no  good  reason  for  using  untried  and  dan- 
gerous paths  when  safe  and  well-traveled  roads  are 
equally  at  hand." 

If  trial  judges,  in  framing  their  instructions,  will  use 
those  which  have  met  the  approval  of  the  appellate  courts, 
small  danger  of  error  will  there  be,  and  less  ground  for  the 
suggestion  that  our  system  of  procedure  in  this  regard  should 
be  modified.  Success  to  that  judge  who  feels  that  he  can  write 
more  learnedly  than  those  who  have' gone  before  have  written, 
but  let  him  make  his  first  attempts  elsewhere  than  in  instruc- 
tions to  juries. 

You  remember  that  perplexed  jury  who,  after  listening 
attentively  to  the  arguments  of  the  District  Attorney,  and 


28 

after  listening  earnestly  to  the  arguments  of  the  attorney  for 
the  defendant,  then  struggled  manfully  to  assimilate  a  very 
learned  and  a  very  long  charge  of  the  court,  expressed,  through 
their  foreman,  their  predicament  by  saying:  "If  we  do  what 
the  District  Attorney  has  told  us,  a  conviction  will  be  the 
result,  and  if  we  do  what  the  attorney  for  the  defendant  has 
told  us,  an  acquittal  will  be  the  result,  but  if  we  do  what  the 
court  has  told  us,  God  only  knows  what  the  result  will  be. " 

Some  arguments  may  make  confusion,  but  the  instructions 
of  the  court  should  always  make  clear. 

In  earlier  years  the  per  cent  of  reversals  by  the  Su- 
preme Court  was  much  larger  than  that  shown  by  the  figures 
I  have  given  you.  Not  many  years  ago  the  per  cent  of  affirm- 
ances was  scarcely  over  fifty.  In  those  years  greater  impor- 
tance was  attached  to  the  mere  fact  of  error,  and  less  examina- 
tion was  made  into  the  character  of  error  for  the  purpose  of 
determining  whether  or  not  it  did  contribute,  or  could  have 
contributed,  to  the  jury's  verdict. 

In  earlier  years  our  courts  seemingly  proceeded  upon  the 
theory  that  presumption  of  injury  arose  from  the  fact  of 
error.  Later  the  courts  have  reached  the  doctrine  that  a  case 
will  not  be  reversed  because  of  an  error,  when  it  can  be  seen 
that  the  defendant  was  not  prejudiced  thereby. 

In  more  than  one-half  of  the  cases  affirmed  error  was  found 
in  the  record,  but  the  appellate  court  determined  that  such 
error  had  not  resulted  in  defendant's  injury,  and  M^as  dis- 
missed with  the  statement  that  the  same  was  not  prejudicial 
to  defendant's  rights. 

A  judgment  should  never  be  reversed  merely  because  the 
record  shows  an  error ;  that  is  not  sufficient.  The  error  should 
not  be  held  reversible  unless  the  record  makes  it  appear  that 
such  error  resulted  in  defendant's  injury.  In  short,  I  affirm 
that  the  rule  of  the  appellate  court  should  be  that  an  error 
will  not  be  held  sufficient  to  cause  a  reversal  of  the  judgment 
unless  the  reviewing  court  can  determine  from  the  record 
that  but  for  the  commission  of  such  error  a  different  verdict 
would  have  been  reached  by  the  jury. 

If  the  record  shows,  with  reasonable  certainty,  that  the 
same  verdict  would  have  been  reached  if  such  error  had  not 
been  committed,  the  judgment  should  be  affirmed.  That  er- 
ror which  has  not  injured  should  be  held  harmless,  and  such 
error  should  never  be  made  to  work  the  release  of  a  defendant, 
or  cause  a  new  trial. 

Stating  the  rule  in  another  form:  before  an  error  of  the 
trial  court  should  justify  a  reversal,  the  reviewing  court  should 
be  able  to  say,  from  an  examination  of  the  entire  record,  that 


29 

the  same  verdict  would  not  have  been  rendered  against  the 
defendant  if  such  error  had  not  been  committed. 

Many  instances  might  be  cited  where  judgments  have  been 
reversed  because  of  errors  which  could  not  have  contributed 
to  the  result  in  the  trial  court.  For  example,  cases  have  been 
reversed  because  the  trial  court  refused  the  request  of  the 
defendant  to  instruct  "That  the  testimony  of  an  accomplice 
ought  to  be  viewed  with  distrust",  or  ''the  evidence  of  the 
oral  admissions  of  a  party  with  caution",  and,  likewise,  cases 
have  been  reversed  because  of  the  giving  of  those  instructions 
when  requested  by  the  plaintiff,  but  later  the  appellate  courts 
have  held  that  neither  the  giving  nor  the  failure  to  give  these 
instructions  is  error.  After  many  years,  the  courts  reached  the 
conclusion  that  it  was  not  error  to  tell  the  jury  to  do  that 
which  they  would  as  surely  do  without  being  told. 

Anyone  having  the  least  experience  with  juries  knows  that 
they  will,  regardless  of  instructions,  distrust  the  testimony  of 
an  accomplice,  and  view  evidence  of  the  oral  admission  of 
parties  with  caution. 

Did  time  permit  many  other  examples  of  similar  character 
would  be  cited.  I  see  no  reason  for  any  change  in  our  law 
on  the  subject  of  instructions  of  juries  in  criminal  cases.  In- 
structions on  questions  of  law  are  undoubtedly  helpful  to  the 
jury,  and,  with  reasonable  care,  error  can  be  readily  avoided. 

Let  us  have  no  change  in  the  law  on  this  subject,  but  let 
attorneys  engaged  in  the  trial  of  criminal  cases  ask  in  the 
matter  of  instructions  no  more  than  honest  and  intelligent 
investigation  leads  them  to  believe  that  the  law  entitles  their 
client. 

Let  the  charge  of  the  judge  be  prepared  with  the  greatest 
of  care,  to  the  end  that  the  charge  will  embrace  only  such 
instructions  as  are  required  by  the  facts  of  the  particular 
ease,  and  such  as  the  decided  cases  show  to  be  proper. 

If  this  be  done,  and  the  law  be  faithfully  and  persistently 
pursued  by  all  engaged  in  its  practice,  and  wisely  interpreted 
and  faithfully  enforced  by  all  judges  upon  the  bench,  no  occa- 
sion will  be  found  for  modifying  our  law  relative  to  instruc- 
tion of  juries  in  criminal  cases.     (Applause.) 

The  President  :  Studying  the  evolution  of  the  law  in  its 
largest  sense,  the  legal  psychology,  if  you  please,  because  that 
is  the  coming  suggestion,  I  know  of  no  more  important  func- 
tion with  which  any  administrative  body  has  ever  been 
clothed  in  the  United  States  than  the  Interstate  Commerce 
Commission,  which  regulates  interstate  traffic,  and  the  various 
state  commissions  which  are  supposed  to  i^egulate  interstate 
commerce.    The  supervisory  government  control  over  the  ad- 


30 

ministration  of  a  public  utility,  essentially  in  the  line  of  the 
regulation  of  the  matters  that  concern  the  body  politic.  I 
know  of  no  more  important  legislation  that  this  government 
as  a  union,  as  a  national  government,  has  ever  inaugurated 
than  the  Interstate  Commerce  Act,  and  no  more  important 
'  amendment  to  such  an  act  than  the  present  amendment  pend- 
ing before  Congress  to  the  Interstate  Commerce  law. 

I  have  had  some  experience  with  state  railroad  commis- 
sions— I  do  not  refer  to  California  railroad  commissions, 
because  until  recently  that  was  not  known  to  exist.  It  is  a 
pleasant  thing  to  sit  in  your  office  and  receive  a  peremptory 
subpoena  from  the  Railroad  Commission  of  Nevada,  calling 
upon  you  to  show  cause  why  you  should  not .  construct  an 
additional  depot  a  mile  and  a  half  away  from  the  one  that 
you  have  already  constructed.  It  is  also  pleasant  to  have  a 
similar  communication  come  in  by  mail,  requesting  you  to 
show  cause  upon  a  certain  date  why^your  entire  schedule  of 
interstate  rates  between  your  terminals  should  not  be  cut 
down  thirty  per  cent.  That  is  what  the  railroad  commis- 
sion of  Nevada  does.  I  am  unfortunately  general  counsel  for 
a  railroad  that  runs  one  hundred  and  forty  miles  into  the 
State  of  Nevada.  I  am  counsel  for  another  one  that  did  run 
eighty  miles  before  the  last  freshets,  and  now  it  doesn't  run 
at  all.  As  general  counsel  for  the  Nevada  Northern  Rail- 
way is  has  been  my  pleasure  to  dance  attendance  upon  those 
subpoenas  issued  by  the  Railroad  Commission  of  Nevada  at 
all  hours  of  the  day  and  night.  For  a  busy  commission  and 
for  an  effectual  commission,  I  do  not  know  of  its  parallel  in 
the  United  States. 

The  first  question  that  was  put  up  to  me  when  the  Nevada 
commission  law  was  passed,  and  this  is  interesting  to  law- 
yers— the  first  thing  I  did  was  to  grab  up  all  the  outstand- 
ing passes  that  had  been  distributed  liberally  around  among 
the  different  employees  and  managers  of  the  different  depart- 
ments of  the  corporation,  and  I  said,  **  Gentlemen,  no  more 
passes".  I  had  hardly  returned  from  giving  that  order  un- 
til I  got  a  communication  from  the  general  manager,  "Can 
the  wife  of  the  counsel  of  the  railroad  company  have  a  pass 
over  this  road  ? "  I  said  ' '  No. ' '  In  the  first  place,  as  a  mat- 
ter of  practice,  nobody  ought  to  have  a  pass  that  does  not 
earn  it,  and  I  do  not  believe  the  wives  of  legal  counsel  earn  it. 
I  believe  the  anti-pass  legislation  of  the  Interstate  Commerce 
and  of  the  State  law  which  is  framed  on  the  same  lines  with 
this  exception,  that  the  Nevada  State  law  permits  the  inter- 
change of  passes  between  counsel  of  the  different  roads— and 
my  distinguished  friend,  the  vice-president  and  general  coun- 
sel of  the  Western  Pacific  will  recall  the  fact  that  I  returned 


31 

a  pass  to  him  tendered  by  the  Western  Pacific  on  the  ground 
that  it  was  against  the  Interstate  Commerce  law — is  a  very- 
wise  one.  The  Nevada  commission  is  composed  of  one  law- 
yer and  two  gentlemen  who  are  not  lawyers — one  a  professor 
of  mathematics  in  the  State  University,  to  figure  out  the 
rate  questions,  and  another  a  brakeman  on  the  Southern  Pa- 
cific road,  an  ex-division  superintendent,  and  a  good  fellow. 
I  received  yesterday  a  letter  from  the  general  manager  of 
the  railroad  company  at  Ely  containing  this  quotation  from 
administration  letter  No.  1  of  the  Nevada  Railroad  Commis- 
sion :  * '  The  law  of  Nevada  says  that  all  of  certain  classes  of 
people,  employees  and  their  families  are  entitled  to  passes. 
The  lawyers  and  the  surgeons  of  this  road  want  to  know 
if  I  can  issue  passes  to  their  wives  and  their  families.  The 
ruling  of  the  Commission  was  that  lawyers'  families,  surgeons* 
families,  the  families  of  ministers,  the  families  of  preachers, 
and  the  families  of  everybody  else  could  have  passes."  I 
said,  notwithstanding  the  distinguished  wisdom  of  the  ex- 
division  superintendent  of  the  Southern  Pacific  and  the  math- 
ematician of  the  University  and  the  lawyer  of  the  railroad 
commissions,  that  the  ruling  was  wrong,  and  "you  issue  no 
passes  to  the  families  of  the  lawyers." 

I  don't  know  what  the  Railroad  Commission  of  this  State 
has  been  doing  recently,  but  I  know  what  they  ought  to  do. 
They  ought  to  emulate  the  example  of  the  Railroad  Commis- 
sion of  Nevada  and  issue  subpoenas  to  the  railroad  companies 
and  ask  them  why  they  don't  reduce  their  rates  thirty  per 
cent.  Perhaps  the  distinguished  gentleman,  a  member  of  our 
Association,  who  is  familiar  with  all  of  those  details  and  mat- 
ters concerning  the  Railroad  Commissions,  will  tell  us  what 
they  are  doing,  what  they  ought  to  do  and  what  they  won't 
do.  I  have  the  pleasure  of  introducing  to  you  Honorable 
Seth  Mann.      (Applause.) 

Seth  Mann,  Esq.,  on   "The  Railroad  Commission   of 

California." 

Mb.  Mann.  Mr.  President  and  Fellow  Members  of  the 
Bar  A.ssociation :  When  I  received  the  invitation  to  the  honor 
of  addressing  this  Association  through  our  fellow  member, 
Henry  Eickoff,  Esq.,  who  acted  as  the  graceful  Ganymede  of 
the  occasion,  I  a.ssure  you  it  filled  me  with  great  gratification 
to  learn  that  I  should  again  have  an  opportunity  to  mount  a 
favorite  hobby. 

I  am  particularly  encouraged,  however,  at  the  outset,  in- 
asmuch as  my  remarks  will  be  devoted  to  a  recommendation 


32 

of  the  enactment  of  positive  law  in  this  State,  by  the  state- 
ment made  by  Judge  Angellotti  in  his  very  excellent  address, 
that  lawyers  should  be  a  factqr  in  the  making  of  proper  laws. 
So  I  want  to  appeal  to  you  in  that  very  important  function 
of  your  profession,  which  is  an  important  addition  to  your 
general  duties  of  expounding  the  law  and  which  should  en- 
gage much  of  your  attention,  the  function  of  making  proper 
laws. 

The  Constitution  Should  be  Amended  by  Making  the 
Railroad  Commission  Appointive. 

My  purpose  is  to  show  that  any  system  of  railroad  rate 
regulation  under  the  organic  law  of  the  State  of  California 
will  be  imperfect,  and,  to  a  large  extent,  ineffectual,  unless 
the  Constitution  of  this  State  is  amended ;  and  that  this 
amendment  should  consist  principally  in  making  the  office 
■of  a  member  of  the  Board  of  State  Railroad  Commissioners 
an  appointive  one.  My  position  is  that  the  members  of  the 
Board  of  State  Railroad  Commissioners  should  be  appointed 
by  the  Governor  by  and  with  the  consent  of  the  Senate.  At 
the  last  session  of  the  Legislature  of  this  State  an  amendment 
to  this  effect  was  presented  in  the  Senate  by  Senator  Camp- 
bell of  San  Luis  Obispo.  The  amendment  provided  for  the 
amending  of  Section  22  of  Article  12  and  the  repealing  of 
Section  23  of  Article  12  of  the  Constitution  of  the  State  of 
California. 

Section  22  is  the  present  Constitutional  provision  defining 
the  method  of  electing  the  members  of  the  State  Board  of 
Railroad  Commissioners  and  prescribing  their  powers  and 
duties. 

Section  23  is  the  section  which  districts  the  State  into 
Railroad  districts.  And  it  may  be  said  here  that  if  it 
shall  be  ultimately  considered  advisable  to  appoint  Commis- 
sioners from  certain  districts,  it  will  probably  be  agreed  that 
the  formation  of  those  districts  should  lie  within  the  powers 
of  the  Legislature  rather  than  be  permanently  fixed  by  an 
organic  law  since  the  changing  conditions  of  population  and 
general  requirements  of  various  sections  of  the  State  are 
varying  from  time  to  time,  and  a  Constitutional  provision  is 
of  too  permanent  a  character  to  meet  these  changing  condi- 
tions. 

The  amendment  referred  to  (which  was  known  as  the 
Campbell  Amendment,  although  it  is  printed  as  "Committee 
Substitute  for  Senate  Amendment  No.  4"),  reads  as  follows: 


33 

"First — Section  22  pf  Article  12  is  hereby  amended 
to  read  as  follows: 

"Section  22 — There  is  hereby  created  a  railroad  com- 
mission, which  shall  consist  of  three  members  and  which 
shall  be  known  as  *  The  Railroad  Commission  of  the  State 
of  California.'  The  Commissioners  shall  be  appointed 
by  the  Governor  by  and  with  the  advice  and  consent  of 
the  Senate.  Of  the  members  of  the  Commission  first 
appointed  hereunder,  one  shall  hold  office  until  Febru- 
ary 1,  1913,  one  until  February  1,  1915,  and  one  until 
February  1,  1917.  The  term  of  office  of  each  Commis- 
sioner so  appointed  shall  begin  on  the  1st  day  of  Febru- 
ary, 1911.  Upon  the  expiration  of  each  of  said  terms, 
the  term  of  office  of  each  Commissioner  thereafter  ap- 
pointed shall  be  six  years  from  the  1st  day  of  February, 
immediately  succeeding  the  expiration  of  the  term  of  his 
predecessor.  "Whenever  a  vacancy  in  the  Commission 
shall  occur,  the  Governor  shall  forthwith  appoint  a 
qualified  person  to  fill  the  same  for  the  unexpired  term, 
subject  to  the  confirmation  of  the  Senate.  Commissioners 
appointed  for  regular  terms,  shall,  at  the  beginning  of  the 
term  for  which  they  are  appointed,  and  those  appointed 
to  fill  vacancies,  shall,  immediately  upon  their  appoint- 
ment, enter  upon  the  duties  of  their  offices;  but  no  per- 
son so  appointed,  either  for  a  regular  term,  or  to  fill  a 
vacancy,  shall  enter  upon  or  continue  in  office  after  the 
Senate  shall  have  refused  to  confirm  his  appointment  or 
adjourned  sine  die  without  confirming  the  same,  nor 
shall  he  be  eligible  for  reappointment  to  fill  the  vacancy 
caused  by  such  refusal  or  failure  to  confirm.  The  Legis- 
lature shall  fix  the  salary  of  the  Commissioners.  The 
Legislature  shall  have  the  power,  by  a  two-thirds  vote  of 
all  the  members  elected  to  each  house,  to  remove  any 
one  or  more  of  said  Commissioners  from  office  for  ^dere- 
liction of  duty  or  corruption  or  incompetency.  AH  of 
said  Commissioners  shall  be  qualified  electors  of  this 
State,  and  no  person  in  the  employ  of  or  holding  any 
official  relation  to  any  common  carrier  subject  to  the 
laws  of  this  State  or  owning  stock  or  bonds  thereof  or 
who  is  in  any  manner  pecuniarily  interested  therein  shall 
be  appointed  to  or  hold  such  office.  No  more  than  two 
of  said  Commissioners  shall  belong  to  the  same  political 
party.  No  vacancy  in  the  Commission  shall  impair  the 
right  of  the  remaining  Commissioners  to  exercise  all  the 
powers  of  the  Commission.  The  act  of  the  majority  of 
said  Commissioners  shall  be  the  act  of  said  Commission. 
The  Commission  and  each  of  its  members  shall  have  such 


powers  and  perform  such  duties  as  are  now  or  may  here-, 
after  be  provided  for  by  law. 

"Second — Section  23  of  Article  12  of  said  Constitu- 
tion is  hereby  repealed." 

The  present  Constitutional  provision,  Article  12,  Section 
22,  provides  that  the  State  shall  be  divided  into  three  districts 
as  nearly  equal  in  population  as  practicable,  m  each  one  of 
which  one  Railroad  Commissioner  shall  be  elected  by  the 
qualified  electors  thereof  at  the  regular  Gubernatorial  elec- 
tion, and  that  his  term  of  office  shall  be  four  years. 

Railroad  Commissioners  should  be  appointed  by  the  Gov- 
ernor, rather  than  elected.  The  proposed  change  in  the 
method  of  selecting  Railroad  Commissioners  is  not  only  ad- 
visable, but  necessary,  if  persons  selected  to  fill  this  office  are 
to  be  qualified  to  discharge  its  duties.  The  office  of  a  Railroad 
Commissioner  demands  a  person  who  has  at  least  some  famil- 
iarity with  the  special  subject  of  freight  rates  and  the  methods 
by  which  they  are  made,  and  how  conditions  applying  to  them 
are  to  be  determined.  The  chief  objections  to  the  unrestricted 
making  of  rates  by  the  carriers  themselves  are  two:  First. 
that  this  system  frequently  results  in  the  making  oC  unreason- 
able rates ;  and,  second,  in  the  making  of  discriminatory  rates. 

In  order  that  questions  arising  under  either  of  these 
heads  may  be  understood  and  decided,  some  special  kniAsiedge 
and  experience  in  connection  with  the  subject  of  railroad  rates 
is  a  prerequisite.  The  subject  is  extremely  special  in  its  na- 
ture, and  what  might  strike  one  unfamiliar  with  the  subject 
as  an  extremely  unreasonable  rate,  may  turn  out  upon  exami- 
nation under  the  law  and  the  facts  applicable  to  the  situation, 
to  be  entirely  reasonable  and  just.  A  familiar  example  of 
this  is  the  system  of  terminal  rates  applying  at  Pacific  Coast 
cities,  which  are  less  for  the  longer  haul  than  for  the  shorter 
haul.  The  rate  applying  from  eastern  defined  territory — that 
is,  from  Colorado  common  points  and  points  east  th(;reof — to 
the  ninety  terminal  points,  known  as  Pacific  Coast  terminal 
points  within  the  State  of  California,  is  less  than  the  rate 
applying  to  points  east  of  these  terminals,  such  as  R(!no,  al- 
though the  distance  of  the  haul  is  150  to  250  miles  further, 
yet  this  system  of  a  lower  rate  for  a  longer  haul  wlien  made 
under  the  different  circumstances  and  conditions  i>revailing 
at  the  further-distant  point,  such  as  competition  of  carriers 
by  sea,  has  been  held  by  the  United  States  Supreme  Court  to 
be  justifiable  under  the  fourth  section  of  the  Interstate  Com- 
merce law,  commonly  known  as  the  "Long  and  Short  Haul" 
clause. 

Questions  of  discrimination  also  present  so  many  ramifi- 


35 

cations  that  it  is  rarely  that  one  ease  can  be  consi<lered  as  a 
precedent  for  another,  and  each  must  be  decided  upon  the 
facts  that  appear.  Yet  there  are  certain  conditions  -  which 
must  be  found  in  any  case  in  order  that  illegal  discrimination 
may  result.  There  must  be  an  actual  movement  of  freight 
under  the  rate  complained  of;  there  must  be  some  injury 
actually  resulting  in  order  to  justify  a  finding  of  discrimina- 
tion; and  an  inequality  in  rates  of  two  independent  com- 
panies may  exist  and  yet  neither  be  liable.  These  instances 
are  mentioned  merely  to  illustrate  and  indicate  the  large 
number  of  considerations  which  must  be  regarded  in  determin- 
ing in  any  case  whether  or  not  a  railroad  is  guilty  of  enforc- 
ing unjust  and  unreasonable  charges  or  imposing  undue  dis- 
criminations upon  its  patrons. 

It  must  be  always  remembered  that  the  Railroad  Commis- 
sion is  by  no  means  a  court  of  last  resort,  and  that  its  decisions 
are  worse  than  valueless  if  they  are  not  founded  in  law  and 
fact,  so  that  they  may  be  sustained  when  appeal  is  taken 
to  the  courts.  A  series  of  decisions  by  a  Railroad  Commission 
which  were  overturned  by  appellate  courts,  would  result  in 
no  value  to  the  people,  but  would  involve  large  expense  to  no 
purpose.  Accordingly  it  is  clear  that  members  of  the  Railroad 
Commission  should  be,  if  possible,  men  of  experience  in  con- 
nection with  freight  and  passenger  tariffs  and  v/ith  the  num- 
erous other  subjects  which  are  connoted  by  these  expressions, 
such  as  terminal  charges  and  rules  and  regulations  made  by 
carriers  which  involve  such  subjects  as  demurrage  charges, 
warehouse  charges,  elevator  allowances,  reconsignment  charges, 
storage  charges,  transfer  charges,  minimum  weights,  live- 
stock transportation,  car  rentals,  private  car  service,  loading 
and  unloading,  and  the  like.  And  if  a  man  of  this  knowledge 
and  experience  cannot  be  obtained,  then  one  should  be  selected 
whose  general  experience  or  work  in  life  has  been  such  as  to 
fit  "him  for  the  ready  acquisition  of  the  fundamental  knowl- 
edge required  to  any  understanding  of  these  subjects  what- 
soever. How  is  an  elector,  called  upon  to  vote  for  whomso- 
ever may  be  nominated  to  these  positions,  able  to  determine 
whether  the  candidate  has  such  qualifications?  It  is  imprac- 
tical. The  position  therefore  seems  to  be  of  necessity  an 
appointive  one;  for  the  Governor  of  the  State  may  investigate 
the  qualifications  of  a  possible  appointee  thoroughly  before 
appointing  him  to  such  a  position,  and  as  he  becomes  then 
responsible  for  the  work  accomplished  by  this  Board,  it  may 
be  assumed,  not  only  a  priori,  but  also  from  the  results  ob- 
tained in  the  States  where  these  Boards  are  appointed,  that 
the  resulting  Board  will  be  better  fitted  to  deal  with  the  com- 
plicated question  of  Railroad  Regulation  than  one  obtained 
under  the  elective  system. 


36 

The  reasons  here  applying  are  of  greater  force  than  those 
which  will  apply  to  any  other  office  because  of  the  peculiar 
special  knowledge  and  qualifications  which  are  required.  The 
people  may  well  and  successfully  elect  the  judges.  The  repu- 
tations and  capacities  of  lawyers  are  generally  well  known. 
Positions  within  the  line  of  other  professions  are  equally  well 
filled  at  elections,  but  here,  where  special  qualifications  are 
prerequisites,  no  system  can  ever  be  successful  in  obtaining 
good  officers  except  the  appointive  system.  To  leave  the 
matter  to  election  is  to  leave  it  to  chance. 

An  excellent  example  of  the  advantages  of  the  appointive 
system  has  been  presented  to  the  people  of  California  in  the 
case  of  the  appointment  of  Col.  H.  D.  Loveland  as  a  member 
of  the  State  Board  of  Railroad  Commissioners,  made  vacant 
by  the  resignation  of  Andrew  M.  "Wilson,  who  was  elected  by 
the  people  of  this  district  to  the  position.  Since  Col.  Love- 
land's  advent  into  office  no  one  will  deny  that  the  State  Board 
of  Railroad  Commissioners  has  assumed  an  activity  not  ob- 
served during  fifteen  years  preceding  his  appointment.  A 
number  of  cases  have  been  decided  by  the  Commission,  and 
several  are  now  pending  before  it. 

Furthermore,  both  Hon.  Charles  A.  Prouty  and  Hon. 
Franklin  K.  Lane,  of  the  Interstate  Commerce  Commission, 
have  expressed  to  me  that,  in  their  opinion,  all  things  being 
considered,  the  appointive  system  is  the  best.  The  people  of 
the  United  States  are  .lustly  pleased  with  the  tremendous 
change  in  railroad  conditions  which  has  been  brought  about 
by  the  activities  of  the  Interstate  Commerce  Commission. 
Even  the  railroads  themselves  admit  that,  in  abolishing  re- 
bates, in  bringing  about  uniform  systems  of  accounting  and 
removing  other  difficulties  under  which  railroads  were  labor- 
ing, but  could  not  escape,  prior  to  the  Act,  this  great  Con- 
gressional statute  has  been  of  large  value  to  the  carriers.  This 
was  substantially  the  statement  of  Mr.  Julias  Kruttschnitt  of 
the  Harriman  System  at  the  recent  hearing  before  the  Inter- 
state Commerce  Commi.ssion  at  Salt  Lake  City. 

The  Interstate  Commerce  Commission  is  an  appointive 
body,  appointed  by  the  President  of  the  United  States,  and 
the  importance  of  its  organization  and  its  powers  is  constantly 
presented  in  the  messages  of  the  Presidents  since  its  organ- 
ization. Is  it  to  be  supposed  that  any  large  number  of  peo- 
ple would  be  heard  to  say  that  this  appointive  system  should 
be  abolished  in  favor  of  an  elective  one  in  the  case  of  the 
Interstate  Commerce  Commission? 

"When  the  Railroad  Commission  is  elected,  the  Governor 
is  under  no  responsibility  whatsoever  for  their  acts  or  their 
omissions.     Under  the   appointive  system   he  would  be  re- 


37 

sponsible  for  all  of  them,  particularly  if  he  had  the  initiative 
in  the  removal  of  them  from  office. 

Another  distinct  advantage  found  in  the  Campbell  amend- 
ment follows  from  the  fact  that  the  Commissioners  go  out  of 
office  in  rotation.  This  may  be  called  the  modern  system  of 
constituting  boards  of  public  officers.  It  thus  follows  that  at 
all  times  there  are  at  least  two  persons  upon  the  board  who 
are  experienced  officials. 

The  term  of  office  fixed  is  for  six  years  as  against  the 
present  term  of  four.  The  term  of  office  of  the  Interstate 
Commerce  Commission  is  seven  years,  there  being  seven  Com- 
missioners, one  being  appointed  each  year.  It  is  also  provided 
in  this  amendment  that  no  more  than  two  of  said  Commis- 
sioners shall  belong  to  the  same  political  party.  This  carries 
out  the  idea  of  representation  from  the  minority  party,  which 
is  found  in  the  Interstate  Commerce  Act  where  at  least  three 
of  the  seven  Commissioners  must  be  appointed  from  the  minor- 
ity party. 

The  amendment  ends  with  the  sentence : 

"The  Commission  and  each  of  its  members  shall  have 
tfuch  powers  and  perform  such  duties  as  are  now  or  may 
hereafter  be  provided  for  by  law." 

This  provision  is  significant  in  that  it  leaves  to  the  Legisla- 
ture the  prescribing  of  the  powers  and  duties  of  the  Railroad 
Commission.  The  limit  of  this  address  will  not  permit  a 
complete  analysis  of  Section  22  of  Article  12  of  the  Consti- 
tution of  the  State  of  California.  This  article  is  open  to 
the  objection,  which  is  always  a  serious  one,  that  it  is  legis- 
lation instead  of  organic  law.  I  think  it  will  be  generally 
conceded  that  constitutional  provisions  which  attempt  to  cover 
the  details  of  legislation  are  not  wise.  In  fact  it  may  be 
said,  as  far  as  the  State  Board  of  Railroad  Commissioners  is 
concerned,  that  no  constitutional  provision  whatever  is  neces- 
sary. 

In  the  State  of  New  York  and  in  the  State  of  Wisconsin, 
both  of  which  States  have  excellent  railroad  commission  laws, 
there  is  no  constitutional  provision  upon  the  subject.  Accord- 
ingly, pursuant  to  familiar  constitutional  law,  all  legislative 
power  is  left  with  the  Legislature,  who  are  then  untrammeled 
in  the  matter  of  legislating  upon  this  subject.  In  Section  22 
we  find  this  provision: 

"Said  Commissioners  shall  have  the  power  and  it 
shall  be  their  duty  to  establish  rates  of  charges  for  the 
transportation  of  pa.ssengers  and  freight  by  railroad  or 
other  transportation  companies." 


293464 


38 

This  provision,  which  upon  its  face  imposes  upon  the 
Railroad  Commission  the  duty  to  establish  by  their  own  act 
all  the  rates  of  charges  of  carriers  must  be  the  source  of  much 
confusion  and  may,  when  the  question  arises,  if  it  ever  does, 
render  all  of  the  effective  provisions  of  the  present  "Wright 
Act  ineffectual  for  any  purpose.  In  order  to  carry  out  the 
other  provisions  of  this  section  and  to  bring  the  carriers  under 
the  penalties  of  the  section  for  failing  to  conform  to  such 
rates  as  shall  be  "established"  by  such  Commissioners  or 
charging  rates  in  excess  thereof,  the  Board  of  Railroad  Com- 
missioners have  found  it  necessary  to  adopt  and  establish 
in  some  manner  the  whole  existing  schedule  of  the  carriers 
in  order  that  all  of  the  rates  may  become  "established."  It 
is  the  rule  of  the  Constitution  that  the  Railroad  Commissions 
shall  establish  the  rates  and  fares,  and  the  Railroad  Com- 
mission are  given  by  that  section  of  the  Constitution  the 
right  to  impose  fines  up  to  twenty  thousand  dollars  for  a 
failure  to  conform  to  an  established  rate,  or  for  a  charge  in 
excess  of  the  established  rate.  Therefore  it  must  be  con- 
ceded that,  in  order  that  this  penalty  may  lie,  the  rate  must 
be  established.  If  I  am  correct  in  that  construction,  see 
what  follows.  These  rates,  therefore,  are  rates  which 
have  received  or  must  receive,  in  order  to  conform  to 
the  peculiar  provisions  of  Section  22,  the  ratification  and 
confirmation  of  the  Board.  It  seems  therefore  that  these 
rates  may  be  claimed  to  be  legally  established  rates  es- 
tablished by  the  legally  authorized  body  under  the  constitu- 
tion of  the  State  of  California.  The  question  therefore  in- 
stantly presents  itself :  how  can  there  be  any  illegality  in  the 
legally  established  rates,  or,  in  other  words,  how  can  any  of 
these  established  rates  be  held  to  be  unreasonable  or  discrimi- 
natory by  the  very  Commission  which  had  adopted  them? 
Or  if  the  Commission  be  conceded  to  have  this  power,  how 
can  they  award  damages  or  reparation  or  impose  penalties 
as  provided  in  the  Wright  Act  for  charging  such  rates  even 
though  they  may  be  found  to  be  unreasonable  and  discrim- 
inatory if  the  same  rates  are  at  the  same  time  to  be  regarded 
as  rates  "established"  by  the  Commission?  There  are  nu- 
merous other  objections  to  the  wording  of  this  constitutional 
provision,  a  discussion  of  which  time  does  not  permit, 
but  in  a  recent  action  brought  by  the  Attorney  General 
of  this  State  against  the  Atchison,  Topeka  and  Santa  Fe  Rail- 
way Company  to  enforce  the  penalty  imposed  by  the  present 
Railroad  Commission  of  $5000  for  the  giving  of  rebates  (and 
which  proceeding  will  probably  ultimately  find  its  way  to 
the  Supreme  Court  of  this  State,  and  possibly  even  to  the 
Supreme  Court  of  the  United  States,  where  many  such  cases 


39 

have  ultimately  gone)  we  shall,  perhaps,  if  we  live  long 
enough,  learn  whether  or  not  the  provision  of  this  Constitu- 
tion authorizing  the  company  to  be  fined  not  exceeding  $20,000 
for  each  offense,  has  any  legal  validity.  I  am  firmly  of  the 
opinion  that  these  questions  should  be  removed  from  our 
Constitution,  and  that  the  whole  matter  should  be  simplified 
and  brought  into  harmony  with  the  Constitutional  provisions 
of  other  States  of  the  United  States,  by  the  adoption  of  the 
Campbell  Amendment  set  forth  at  the  beginning  of  these 
remarks. 

When  this  amendment  is  adopted  (as  I  trust  it  will  be 
at  the  next  session  of  the  Legislature  of  the  State  of  Cali- 
fornia), we  shall  have  the  organic  law  of  the  State  of  Cali- 
fornia in  a  condition  where  we  may  proceed  to  the  enactment 
of  a  logical  and  modern  railroad  regulation  law. 

The  law  of  New  York  is  an  excellent  example  of  this 
modern  system.  It  is,  together  with  the  laws  of  other  States, 
abstracted  in  the  recent  report  of  the  twenty-first  annual  con- 
vention of  the  National  Association  of  Railroad  Commissioners 
in  the  report  of  the  Committee  on  Powers,  Duties  and  Work 
of  the  State  Railway  Commissions,  at  p.  81. 

Under  this  law  the  Commission  is  appointed  by  the  Gov- 
ernor with  the  approval  of  the  Senate.  The  law  is  based  upon 
the  Interstate  Commerce  Act,  and  as  there  is  no  constitutional 
provision  in  New  York  upon  the  subject  of  Railroad  Commis- 
sions, the  Legislature  wa.s  enabled,  without  constitutional  re- 
striction, to  adapt  the  Interstate  Commerce  Law  to  the  needs 
of  the  State  of  New  York.  Unquestionably  the  Interstate 
Commerce  Act  represents  the  best  thought  upon  the  subject 
of  the  regulation  of  transportation,  and  we  have  this  great 
advantage,  that  it  has  been  construed  frequently  by  the  high- 
est court  in  America.  If  California  were  in  a  position  where 
its  Legislature  could  proceed  to  adopt  a  railway  law  which 
should  be  substantially  in  form  and  effect  the  same  as  the 
Interstate  Commerce  Act,  it  would  be  in  line  with  the  best 
modern  thought  upon  the  subject  of  railway  rate  regulation. 
The  first  and  indispensable  step  in  this  direction  is  the  adop- 
tion of  the  amendment  to  Section  22  of  Article  12  of  the 
Constitution  of  the  State  of  California  herein  recommended 
to  your  consideration. 

The  PREsroENT :  I  am  sure  that  the  thanks  of  the  Associa- 
tion are  cordially  extended  to  the  distinguished  gentlemen 
who  have  favored  us  this  evening  with  the  discussion  of  the 
topics  which  have  been  assigned  to  them.  It  is  rather  diffi- 
cult to  secure  men  who  are  interested  enough  to  come  before 
the  Association  and  discuss  these  large  problems,  and  the 


40 

Association  is  very  much  indebted  to  the  gentlemen  who 
have  helped  to  make  the  evening  a  pleasant  one. 

I  wish  to  invite  the  attention  of  the  Association  to  some 
matters  for  a  moment  in  connection  with  the  administration 
of  the  Association  itself.  The  San  Francisco  Bar  Associa- 
tion has  now  reached  a  membership  of  over  five  hundred,  I 
think  something  like  five  hundred  and  fifteen  at  the  last 
count,  and  we  are  endeavoring  to  and  shall  endeavor  to,  in 
the  next  few  months,  show  the  work  of  the  different  com- 
mittees and  sections  which  have  had  charge  of  some  of  the 
matters  that  have  seemed  most  important  to  be  considered 
by  the  Association  as  such.  It  is  expected  that  the  work 
will  go  on  so  that  at  the  meeting  of  the  State  Bar,  which 
occurs  in  Los  Angeles  in  November  next,  we  shall  have  the 
crystallized  judgment  of  this  Association  and  different  other 
legal  associations  who  have  received  the  printed  copies  of 
our  record,  in  such  form  that  we  may  make  ourselves  felt 
at  the  next  meeting  of  the  Legislature  of  the  State.  I  de- 
sire to  invite  the  cordial  attention  of  the  members  of  the 
Bar  to  the  coming  meeting  of  the  State  Association  in  Los 
Angeles  in  November,  in  order  that  the  united  association 
of  the  State  may  so  present  its  views  to  the  Legislature,  for 
the  adoption  of  such  reasonable  amendments  as  may  seem 
proper  to  present  and  to  have  adopted  at  this  juncture,  to 
the  end  that  some  good  may  be  accomplished,  always  reserv- 
ing, however,  in  connection  with  the  matter  of  reforms  the 
suggestion  that  needed  reforms  cannot  be  accomplished  in 
an  hour  or  in  a  day.  Those  things  must  be  patiently  worked 
out,  and  we  should  not  appear  before  the  legislative  depart- 
ment without  having  thoroughly  digested  the  proposed 
changes  in  the  law,  and  with  the  knowledge  and  ability  to 
maintain  the  suggestions  that  we  may  offer. 

We  thank  you  very  much  for  your  attendance  this  even- 
ing, and  now  bid  you  good  night.     (Applause.) 


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